Where Were You in 1962? Legal Lessons from a Year That Changed America

Home , 1942 World Series, 1955 World Series, Back to Brooklyn, Ben Chapman (baseball), Billy Cox (baseball), Bobby Bragan

Where Were You in 1962? Legal Lessons from a Year that Changed America

Speaker: David Krell, Esq.

Any reproduction of this document without express authorization, in whole or in part,

is strictly prohibited. 1 David Krell

 Member of PA, NY, and NJ bars  JD from Villanova Law School  LLM from Cardozo Law School  Television news writer  Deputy Press Secretary for gubernatorial campaign  Author of 300+ articles for magazines, web sites  Author of “Our Bums: The Brooklyn Dodgers in History, Memory and Popular Culture” (McFarland, 2015)

2 Introduction

 What legal lessons can we learn from 1962?

 Improving legal practice

 Crisis Management

 Adjusting to new scenarios

3 Cuban Missile Crisis

 Lasted almost 2 weeks

 President Kennedy brought everyone into the room, listened to all opinions.

 Kennedy’s response to the nation was clear, succinct, and laid out alternatives

4 Writers Influence Writers: JFK & Oliver Wendell Holmes  "...it is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return." – Oliver Wendell Holmes, In Our Youth Our Hearts Were Touched With Fire, Address delivered on Memorial Day, May 30, 1884, at Keene, NH, before John Sedgwick Post No. 4, Grand Army of the Republic.

5 JFK and Holmes (continued)

 “Ask not what your country can do for you, ask what you can do for your country.” – President Kennedy Inauguration Speech, January 20, 1961

6 Use Simple and Concise Language: Ziegler’s Rule  “You want the benefits of free trade? Food is cheaper. Food is cheaper, clothes are cheaper, steel is cheaper, cars are cheaper, phone service is cheaper. You feel me building a rhythm here? That's 'cause I'm a speechwriter and I know how to make a point. It lowers prices, it raises income. You see what I did with ‘lowers’ and ‘raises’ there? It's called the science of listener attention. We did repetition, we did floating opposites and now you end with the one that's not like the others. Ready? Free trade stops wars. And that's it. Free trade stops wars! And we figure out a way to fix the rest! One world, one peace. I'm sure I've seen that on a sign somewhere.” 7 Name That Theme In One Sentence  Whether you appear before a judge, jury, client, or the media, you need to pull out the theme of the story. Essentially, the theme is like the trunk of a tree. Everything branches from the trunk.

 Example: Kenneth Frequency terrorized a family of three when he pointed a gun, shouted orders, and violently yanked jewelry from the wife’s neck.

 Example: Kenneth Frequency is a dangerous

thief who terrified his victims by using force, 8 threats, and a weapon. Slogans Are Great Examples of Simple and Concise Language

 This Is Beer (Budweiser)  Quality Is Job #1 (Ford)  The Pause That Refreshes (Coca-Cola)  The Choice of a New Generation (Pepsi)  Fair & Balanced (FOX News Channel)  Imagination At Work (General Electric)  We Never Close (M*A*S*H #8063)  Best Care Anywhere (M*A*S*H #4077)  Commitment to Excellence (Oakland Raiders)  Just win, baby (Al Davis, Owner of Oakland Raiders)  Sin A Little With Star Time (from “One Day at a Time”)  Frost Yourself (from “How To Lose A Guy in 10 Days”) 9 Military Example of Simple and Concise Language

 “The F2A-3 is not a combat aeroplane. It is inferior to the planes we were fighting in every respect…The Japanese Zero can run circles around the F2A-3.

“It is my belief that any commander that orders pilots out for combat in a F2A-3 should consider that pilot as lost before he leaves the ground.”

– Phil White (quoted in The Black Sheep by Bruce Gamble)

10 If Romeo & Juliet Were Attorneys  “Deny thy father, refuse thy name” becomes…

 “Whereas we are in love and notwithstanding the potential impact on your inheritance and possibility of retaliation by your family in a physical or reputation sense, I urge you in the strongest possible terms to abdicate your name, family, and all of the benefits pertaining thereto. If abdication is fully and completely accomplished, we can enjoy our lives freely and without interference from members of either the Capulet or Montague families or their duly authorized representatives.” 11 If the Beach Boys Were Attorneys, Then Lyrics To “California Girls” Might Be…  Whereas East Coast girls keep up with and sometimes set fashion trends,  Whereas Southern girls have endearing accents,  Whereas Midwest girls have courteous and friendly tendencies,  Whereas Northern girls like to embrace and create bodily warmth on cold nights,  I am attracted to them and I wish they could all have their primary residence in the geographic area commonly known as the State of California

12 The Jack Benny Rule aka Economy of Words

 The key to good communication is brevity.

 The key to great communication is brevity combined with clarity.

 Be economical with words.

 Corollary: Repetition and synonyms have their places, too.

 Exercise: Explain why you like or dislike 13 something in 10 words or less. Oliver Wendell Holmes and the Jack Benny Rule:

 “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” – Schenck vs. United States, 249 US 47 (1919) (emphasis added). Holmes addresses freedom of speech in the context of the WWI draft. The ‘clear and present danger’ rule originates.

14 Earl Warren and the Jack Benny Rule

 “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” (emphasis added). – Chief Justice Earl Warren in Brown vs. Board of Education of Topeka 347 US 483 (1954). The Brown case opened the doors of integration.

15 Military Examples of the Jack Benny Rule

 “Nuts!” – General Anthony McAuliffe’s reply to German demand for surrender in WWII

 “An intellectual is a man who takes more words than necessary to tell more than he knows.” – President Eisenhower, former US Army General and Commander of Supreme Headquarters of Allied Expeditionary Force (SHAEF) 16 Ronald Reagan Examples of the Jack Benny Rule

 “There you go again.” – 1980 presidential election campaign

 “Are you better off now than you were four years ago?” – 1980 presidential election campaign

 “I am not going to exploit for political purposes my opponent’s youth and inexperience.”

– 1984 presidential election debate 17 STOP: State Theme Or Purpose

 STOP: State Theme or Purpose.

 You must always ask, why you are writing this communication or taking this action?

 What do you want to convey?

 What is your optimal outcome?

18 STOP Exercise

 Your boss asks you to research the law in Illinois on an arcane issue for a high-level client in Chicago. This is your big break! Your work will

1) give you visibility with senior partners

2) put you on a higher career level

3) involve travel to Chicago, San Francisco, and Honolulu.

What is your purpose for writing the memo? 19 Adjusting to Crisis

 Any scenario has a built-in option of abort

 Assess the cost: getting in, getting out, staying there

 Is it worth the cost?

20 Lawyer as Networker

 Roy Hofheinz and William Shea managed the operation of bringing major league teams to Houston and New York  Inspiring through politics and civic leadership  Ensuring a team effort rather than individual glory  Outlining the goals and costs

21 Rebounding from Failure

 Nixon loses 1960 presidential election and 1962 California gubernatorial race  Dismisses television as a non-factor in political discourse  Meets Roger Ailes, producer of “The Mike Douglas Show” before an appearance  Ailes convinces Nixon of television’s importance, shapes a new image  Nixon authors policy books after resigning

22 Examples of Adjusting to Crisis

 Freedom 7 launches on February 20, 1962

 John Glenn is third American astronaut in space, first to orbit the Earth

 Flight is cut short after three orbits because of a problem with the space craft

23 Adjusting to Image Crisis  Aurora 7 launches in May 1962

 Scott Carpenter lands in the ocean several hundred miles from the designated area

 Carpenter gets criticized

 Never flies for NASA again

 Becomes involved with SeaLab

24 Learning From What Didn’t Work

 Wally Schirra launched in Sigma 7 in October 1962

 Schirra was adamant about a flight plan with lots of white spaces on the pages

 Simplified his flight plan to launching, orbiting, and returning safely

25 Diversify Your Legal Assets

 In 1962, Vaughn Meader was sitting on top of the world as a JFK impersonator.

 Meader often appeared in nightclubs and on television.

 When JFK was killed, Meader’s career went south.

 Had JFK lived for a second term, Meader’s value may have ended after eight years.

26 Protecting Your Intellectual Property

 Johnny Carson débuts as host of The Tonight Show on October 1, 1962

 After 20 years, Carson became an institution

 Portable toilet company named “Here’s Johnny”

 Carson sues

27 Jackie Kennedy as Icon

 Jackie Kennedy marries Ari Onassis in late 1960s

 “Jackie O” becomes New York City icon of fashion, poise

 Ron Galella becomes famous as the photographer noted for pursuing Onassis

 Onassis sues

28 Dodger Stadium

 Walter O’Malley couldn’t get the deal he wanted in Brooklyn

 O’Malley struck a deal with Los Angeles

 Migrant families removed from Chavez Ravine

 If it happened today, public relations challenges in 24/7 world

29 To Kill A Mockingbird

 Was Atticus Finch really a hero or just a lawyer doing his job?

 What could Atticus have done differently in representing Tom?

 What is the true power of a lawyer?

30 Supreme Court Cases

 Engel v. Vitale – prayer in school

 Landmark case in the progressive movement

 Signal of liberalism emerging in the 1960s

31 Krell’s Korner is a column about the people, events, and deals that shape the entertainment, arts, and sports industries. Stealing Home— Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd. and the Glory, Heartbreak, and Nostalgia of the Brooklyn Dodgers By David Krell

The Brooklyn Dodgers do not exist but for the mem- donment, however. It was, in fact, a result of complex lay- ory, heart, and soul of those who refuse to yield their ers of political, sociological, and fi nancial forces compet- passion for the legacy, lore, and history of the Dodgers. ing for attention, power, and favor. Indeed, their passion is relentless. Their heartbreak, Whatever the reason, though, the Brooklyn Dodgers legendary. are long gone. When the Dodgers moved from Brooklyn to Los An- A restaurant in Brooklyn—The Brooklyn Dodger geles after the 1957 baseball season, the Dodger Faithful Sports Bar and Restaurant—proactively kept the pro- responded by turning shades of red with fury, green with verbial candle of Brooklyn Dodgerdom lit by using the envy, and gray with depression. No longer would they team’s name. The use refl ected a deliberate attempt to collectively pray in a brick-faced cathedral called Ebbets capitalize on sentiment. Field. Baseball metaphors naturally come to mind to de- The Dodgers boasted a new metropolitan home scribe the subsequent action—the Dodgers returned to where sunshine reigned during most of the year, people Brooklyn to play on the fi eld where a judge rules instead traveled by automobiles on freeways instead of subway of an umpire, where verbal barrages carom off a court- cars on tracks, and a new stadium—Dodger Stadium— room wall faster than line drives off the idiosyncratic eclipsed Ebbets Field in look, feel, and modernity when it outfi eld wall at Ebbets Field, and where the rule of law debuted in 1962. Meanwhile, the team’s departure from decides the winner instead of runs scored. Brooklyn relegated Ebbets Field to the baseball stadium graveyard. Obsolete, Ebbets Field—the ballpark occupy- Plainly, the Dodgers wanted the name of the borough ing one city block bordered by Bedford Avenue, Sullivan it dispatched with ignominy to the bench. To reach its Place, McKeever Place, and Montgomery Street in the goal, the Dodgers organization hurled fastballs, curve- Flatbush section of Brooklyn—faced its demise. The balls, and knuckleballs in the form of legal arguments death knell sounded on February 23, 1960 when demoli- claiming ownership of the Brooklyn Dodgers name. tion began with a wrecking ball painted like a baseball To use another metaphor, the chickens came home to shattering the visitors’ dugout. roost. Bobby Thomson’s playoff home run in 1951 may Specifi cally, they came to the Southern District of have been the Shot Heard ‘Round the World, but the New York in Major League Baseball Properties, Inc. v. Sed destruction of Ebbets Field was the shot straight through Non Olet Denarius, Ltd.1 the heart, soul, and core of Brooklyn. Play ball! The Dodgers’ departure left a massive, indefi nable, and soulless void in the borough. Frank Sinatra senti- mentally lamented Ebbets Field’s absence in the song 1st Inning: The Birth of Baseball There Used To Be A Ballpark. Undeniably, Ebbets Field’s Baseball is a timeless game steeped in legend, deco- destruction emphatically placed an exclamation point rated by myth, and obsessed with facts, statistics, and on the incalculable depression, gloom, and rage running trivia. As children, we learn the game and adapt versions rampant throughout Brooklyn. beyond groomed Little League ball fi elds to other sites of play—backyards, driveways, and streets. Mostly, stan- The transformation of the Brooklyn Dodgers to the dard rules apply for the batter—four balls equal a walk Los Angeles Dodgers was not a result of a simple aban- and three strikes equal an out.

170 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 Wiffl e® Ball can be played with two or more players. Baseball archaeology revealing the genesis, evolu- The basic equipment consists of an authorized Wiffl e® bat tion, and establishment of the game fosters debate among and ball—at the very least, the game requires a pitcher historians, enthusiasts, and insiders. The sport appears and a batter. Typically, “invisible” players represent base to descend from Great Britain, though rules in American runners—“Invisible Runner on Second. A hit over your versions may be fl uid. head past the rose bushes counts as a single, so Invisible Runner will score.” Children have hit balls with bats as long as there have been children, but base- Stickball is an urban game, classically played with a ball’s most direct ancestors were two broomstick and tennis ball or pink spaldeen ball in the British games: cricket, a stately pastime streets of northeastern cities—“Anything past the Buick divided into innings and supervised by on a fl y is a home run.” umpires, and rounders, a children’s stick- and-ball game brought to New England From rural meadows to suburban greenbelts to by the earliest colonists. Soon there were metropolitan asphalt, baseball is entrenched in America. many American variations and even The 1989 movie Field of Dreams refl ects baseball’s allure, more names: ‘old cat,’ ‘one old cat,’ ‘two power, and unvarying continuity. Based on the 1982 old cat,’ ‘three old cat,’ ‘goal ball,’ ‘town book Shoeless Joe by W.P. Kinsella, Field of Dreams revolves ball,’ ‘barn ball,’ ‘sting ball,’ ‘soak ball,’ around Ray Kinsella, an Iowa farmer who hears a voice ‘stick ball,’ ‘burn ball,’ ‘ round ball,’ proclaiming, “If you build it, he will come.” The “it” is a ‘base,’ and ‘Base Ball.’ baseball fi eld carved out of the farmer’s farmland. Foul lines, base paths, and an outfi eld replace rows of corn. Boys played one version or another on Soon, the rows of corn left untouched to provide an out- college campuses and village greens, fi eld fence become an entry point for magically resurrect- in schoolyards and farmers’ fi elds and ed deceased players to enter the fi eld and play baseball. city streets. Revolutionary War soldiers Among the players—the legendary Shoeless Joe Jackson. played ball at Valley Forge. Slave children played in the South, sometimes using a At the end of the movie, Ray faces a decision—keep tree limb for a bat and a walnut wrapped the ball fi eld or sell the farmland to the bank to avoid in rags for a ball. On their way home bankruptcy. Ray’s idol, an author named Terence Mann from crossing the continent, Meriwether (based on J.D. Salinger), authoritatively articulates base- Lewis and William Clark tried to teach ball’s command in an appeal to keep the ball fi eld. the Nez Percé Indians to play the ‘game The one constant through all the years, of base.’ Ray, has been baseball. America has The game varied from state to state, rolled by like an army of steamrollers. town to town, but town ball was the It’s been erased like a blackboard, re- most popular. Under its rules, the infi eld built, and erased again. But baseball has was square. There were no foul lines marked the time. This fi eld, this game, is and no fi xed positions in the fi eld. Eight a part of our past, Ray. It reminds us of all to fi fteen men usually played on a side, that once was good, and could be again. but room could be found for as many as Ohhhhhhhh, people will come, Ray. 2 fi fty. The ‘feeder’ was the least important People will most defi nitely come. player: it was his job merely to toss the Indeed, baseball’s aura of romance, constancy, and ball to the ‘striker,’ who was allowed to reliability is rooted fi rmly in America’s psyche as a demand that the ball arrive either high or genuinely engaging pastime across generations. Largely, low and then to wait and wait, if neces- baseball’s archaeology consists of 20th century players, sary, until he got his wish. A single out teams, and stadiums as topics triggering conversation, de- retired the side, and a runner was out if bate, and memory. Who could pitch faster—Nolan Ryan the ball was caught on the fl y or if he was or Walter “Train” Johnson? Who would win in a match- ‘soaked’—hit with the ball while running up—1927 New York Yankees or 1977 New York Yankees? between bases.3 Which stadium favored the home team with a bigger The creation myth linked with baseball centers on Ab- advantage—the majestic, intimidating, and overpowering ner Doubleday. Doubleday, according to the myth, codi- Yankee Stadium for the New York Yankees or the tricky, fi ed rules for the sport of baseball after playing town ball challenging, and intimate Ebbets Field for the Brooklyn for Otsego Academy against Green’s Select School. The Dodgers? time was Summer 1839. Geoffrey C. Ward, author of Base- Good questions, all. ball: An Illustrated History, concisely explains the factual contradiction to the myth. “[H]e was at West Point, not

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 171 Cooperstown, in the summer of 1839. He never claimed ball’ preceded the well known 1828 rules to have had anything to do with baseball, and may never for rounders, which have long propped have seen a game.”4 up the baseball-from-rounders hypoth- esis. Also instructive is the fact that the The Doubleday link owes its existence to patriotic name ‘rounders’ cannot be found in the pride. Sporting goods mogul Albert Spalding inspired the historical record prior to the year 1828, Doubleday story to dissuade adherers to the evolution whereas the word ‘base-ball’ shows up theory of baseball descending from British games. David at least fi ve times in 18th century writ- Block details the Spalding mandate in Baseball’s Earliest ings. Within the pantheon of baseball Rules?, an article posted on the website of the Society for mythology, Abner Doubleday may reign American Baseball Research. supreme. Yet, in terms of longevity, the [Baseball historian Henry] Chadwick, rounders ancestry myth is a formidible who was born in 1824 in the town of [sic] challenger.6 Exeter in western England, recalled play- Also at risk of losing its accepted prominence in ing rounders as a child. Because baseball baseball lore is the date of June 19, 1846 as the fi rst date reminded him of his childhood pastime, of organized baseball. At Hoboken, New Jersey’s Elysian he naturally concluded that rounders Fields, “a grassy picnic grove overlooking the [Hudson] was the ancestor of the American game. River,” the New York Knickerbocker Base Ball Club Beginning in 1860, Chadwick included played the fi rst game under offi cial rules created by Alex- his baseball-from-rounders theory in ander Cartwright and Daniel Lucius “Doc” Adams. The virtually every one of the innumerable Knickerbockers lost to the New York Base Ball Club by a writings on baseball he produced over score of 23-1.7 the next 40 years. George A. Thompson, Jr., a New York University Of course, it was this ‘un-American’ the- librarian, discovered two articles from now-defunct New ory that provoked Albert Spalding into York City newspapers predating the 1846 game by ap- convening the Mills Commission, which proximately 20 years. The articles mention “base ball” ultimately saddled us with the Double- with implications of a sport refl ecting organized rules and day myth. Then in 1839, New York regular teams. Absent from the articles, however, are team librarian and pioneer baseball researcher names. The fi rst article appeared in 1823 in The National Robert W. Henderson, in his essay Advocate. The second article appeared in 1825 in The New- ‘Baseball and Rounders,’ disproved the York Gazette and General Advertiser.8 Doubleday fi ction. Using sources such as the 1828 rules for rounders that appeared Thompson’s discovery lends credence to a baseball in The Boy’s Own Book, he demonstrated evolution theory rather than a creationist theory. Con- conclusively that baseball derived from sequently, the 1846 game is an extension of previous that particular old English game. Or did incarnations of organized baseball rather than the starting he? While most baseball historians since point. Henderson have repeated the baseball- from-rounders theory, few have conduct- The Advocate article has no description of the game it refers to. Many rules of ed fresh research on the subject.5 the modern game, like foul territory and Block theorizes that baseball evolved on a sepa- throwing to a base to get a player out, rate track from rounders. His evidence is a 1796 book were not known to have been formally by Johann Christoph Friedrich Guts Muth—Spiele zur introduced until the 1846 match in Hobo- Uebung und Erholung des Korpers und Geistes fur die Jugend, ken. Other elements, like nine innings in ihre Erzieher und alle Freunde Unschuldiger Jugendfreuden a game and nine players to a team, did (Translation: Games for the Exercise and Recreation of Body not become the norm until the following and Spirit for the Youth and His Educator and All Friends of decade, scholars say. Innocent Joys of Youth). Guts Muth describes a German ball So, the 1823 game could have resembled game and an English ball game in his book. His descrip- any of the ancestors of baseball that were tions provide fodder for Block’s advocacy of a decreasing being played at the time. For example, a status for rounders as a baseball progenitor. game called town ball (probably played Perhaps the discovery of the 1796 Guts before or after a town meeting) required Muths book can help set the record a player to be hit with the ball to be straight. Now it can be shown that a set called out. In cricket and rounders, all of kindred rules for a game called ‘base- the players took a turn at bat. Variations

172 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 of another game, known as ol’ cat, used admission fee. Brooklyn fi nally agreed to holes as bases and required players to join the league in August, when the Fort stick their bats in them as they raced from Wayne franchise folded. But the Eckfords’ one to the next.9 tenure was short-lived. At a post-season convention, the league voted to strip their Delving into the rich prehistory of baseball yields games from the record on the basis of pre-20th century fi ndings adding to the tremendous their late entry. Twelve years would pass spirit, embrace, and evolution surrounding the sport. Its before Brooklyn had a professional team advancement as a sport of business developed from a of its own.13 pastime of recreation. In 1883, the efforts of a newspaperman culminated in a Ball games involving bases were men- team for Brooklyn. George Taylor, city editor of the New tioned in print as early as the 18th York Herald, convinced three friends to join him in his century, said David Q. Voigt, a retired sports business endeavor—two friends were businessmen professor of sociology and anthropology Charles Byrne and Joseph Doyle. The third friend was at Albright College in Reading, Pa., and Ferdinand Abell. the author of a three-volume history of baseball. [Abell] ran a gambling house in Nar- ragansett, Rhode Island. With Abell For instance, a doctor in George Wash- putting up most of the money, the three ington’s army in Valley Forge, Pa., wrote men obtained a franchise in the Interstate of a game where players ran from base League and built a ball park on a site in to base, he said. Children’s books of that the Park Slope section of Brooklyn where century described a similar game. And George Washington and his troops had [baseball historian John] Thorn points fought the Battle of Long Island. The park out that an Englishwoman named Lady was named Washington Park. The team Hervey wrote in a letter in 1748 that the was called the Grays, after the color of family of the Prince of Wales was ‘divert- their uniforms, and it was an immediate ing themselves with baseball, a play all success. It drew its share of spectators, who are or have been schoolboys are well turned a nice profi t, and won the pennant acquainted with.’10 in its fi rst year of operation.14 In the infant days of organized baseball, Brooklyn As the team’s president, Byrne hired a 24-year-old contributed greatly to the sport’s advancement. offi ce worker “[t]o perform a variety of routine chores.”15 Baseball had been played in Brooklyn as The new employee contributed wherever needed. far back as 1849 by a succession of ama- [H]e did a little bit of everything for the teur clubs called the Atlantics, the Excel- club. He kept the books, sold tickets and siors, the Putnams and the Eckfords. The scorecards, and tidied up around the Atlantics, in fact, were Brooklyn’s fi rst offi ce. The job might have seemed small championship team. They won titles in potatoes to man of [his] background. 1864 and 1866 while playing in a loosely Though barely of mature years, he had knit federation called the National Orga- already been an architectural draftsman, nization of Baseball Players. A few years a small-time book publisher, and served later, they carved for themselves a small as an assemblyman in the State Legisla- but enduring niche in baseball history ture. But it was in baseball that [he] saw when they defeated the Cincinnati Red the cast of his future, and the future was Stockings, at the time the only profes- approaching rapidly.16 sional team in the country.11 Eventually, Byrne’s hiring choice proved prophetic— In 1871, the Brooklyn Eckfords attempted joining the man’s name was Charles Ebbets. the fi rst professional baseball league—the newly formed National Association of Professional Players.12 The team’s initial defi ance of a required monetary payment caused 2nd Inning: Birth of the Brooklyn Dodgers a late entry with a subsequent revocation of league If the Dodgers organization ever creates a coat of membership. arms to refl ect its rich history, remarkable legacy, and The Brooklyn Eckfords were to be one of indelible contribution to baseball, the Ebbets name will the charter members, but the team’s rep- undoubtedly enjoy a prominent place. Although no such resentative balked at paying the $10.00 escutcheon currently exists, verbal and written heraldry

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 173 of Charles Ebbets mirrors the substantial prism of base- of view. “The term ‘Trolley Dodgers’ was attached to the ball colors that he added to the Brooklyn spectrum in Brooklyn ballclub due to the complex maze of trolley cars general and Brooklyn baseball in specifi c. that weaved its way through the borough of Brooklyn. The name was then shortened to just ‘Dodgers.’ During From 1887 to 1889, Brooklyn baseball fans gave a the 1890s, other popular nicknames were Ward’s Won- label to the team based on the newfound marital status ders, Foutz’s Fillies and Hanlon’s Superbas.”22 of many Brooklyn players—Bridegrooms.17 In 1890, the Bridegrooms joined the National League.18 A rival start- The Trolley Dodgers attracted an investor—George up league also boasted a Brooklyn team. Chauncey. Chauncey, a former player on the Brooklyn Excelsiors team, found fi nancial success as a real estate The 1890 season had been marked by the investor and fi nancier. He was also one of the investors of emergence of a new professional league the Brooklyn Wonders, a team in the Players’ League.23 which also had a Brooklyn franchise. It was called the Players’ League, and Chauncey got involved in more than fi nancial in- though it would not last beyond its fi rst vestments concerning the Trolley Dodgers. For example, season, it managed to leave its mark. Chauncey “[c]onvinced the baseball champions to move The new teams began fi lling their rosters out of Washington Park in South Brooklyn over to East- with players from the other two leagues, ern Park.”24 Chauncey also spearheaded the fi ring of touching off what became known as the the team’s manager, Bill McGunnigle, despite the team’s Brotherhood War. The war, though brief, success.25 was a costly one. The Players’ League folded. The American Association was The Dodgers formalized its ownership by incorpo- crippled beyond repair. At the end of the rating under the name “Brooklyn Baseball Club” and 1890 season, the two Brooklyn franchises issuing stock—“[T]he stock of 100 shares capitalized at agreed to a merger of sorts, with Byrne, $250,000 with the Byrne-Doyle-Abell group taking just Doyle, and Abell retaining control of the over 50 percent (Taylor had sold his interest in 1885) and club.19 the Chauncey group, with associates E.F. Linton and H.J. Robinson, taking the balance.”26 The merged Brooklyn team then acquired a nickname based on a custom throughout the borough. “By this time Chauncey offered Ebbets the opportunity to buy the fans had taken to calling the Brooklyn team the ‘Trol- stock because he noticed Ebbets’s zeal, skill, and value. ley Dodgers,’ since that practice was becoming either an “He was the fi rst to recognize that Charlie Ebbets’s zest attendant charm or a daunting facet of Brooklyn life.”20 for the game of baseball was matched by an unusual fl air for its operations. He sold the young man half of his The geography of the new home fi eld reinforced the stock in the club. Then, when Charles Byrne died in 1898, nickname’s appropriateness. Chauncey sponsored the election of Ebbets as president of the club. It was a move that gave new shape and direction The fi rst, most discernible change was to the growth of the franchise.”27 a sanguine one for Brooklyn. The team moved into the spanking new ballpark Ebbets built upon his stock ownership. On January 1, that had been built for the Players’ 1898, an announcement confi rmed Ebbets’s purchase of a League club in 1890. The new stadium, block of stock. called Eastern Park, was located in the East New York section of Brooklyn. Ebbets had purchased 40 percent of the Though far from the borough’s center of team from the old Brotherhood interests population, it was conveniently situated in a deal consummated the previous at the intersection of a number of trol- day in Alfred M. Kiddle’s offi ce in New ley and streetcar lines. To get to the park York’s Potter Building. By using his sav- from the nearest trolley stop, however, ings and borrowing as much as he could, a visitor was obliged to work his way Ebbets had bought up the minority inter- across the tracks of the New York & est. Meanwhile his partner Ferdinand Manhattan Beach Railroad, dodging Abell, tired of the losses that had begun trolleys and streetcars as he went. Thus with the advent of the Players’ League the Brooklyn team became increasingly and that had continued throughout the referred to as the Trolley Dodgers, or 1890s, was only too happy to give Ebbets simply the Dodgers.21 an option on his shares until February 1. Although Charley agreed to make the The Brooklyn Base Ball Club either suffered or en- purchase and it would have brought his joyed fl uidity in its team name, depending on one’s point holdings up to 85 percent, he ultimately

174 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 wasn’t able to swing it. Abell, not anxious called, appropriately, Pigtown—pigs fed there. “[I]t was to sell to anyone else, held the shares.28 a four-and-a-half acre slum that consisted of a garbage dump surrounded by clusters of rundown squatters’ Abell and Chauncey agreed to allow Ebbets to run shanties.”33 the Brooklyn Base Ball Club. Ebbets used this authority to mandate a new home for the team. Erected in 1898, this Ebbets based his Pigtown site choice in the “south- new ballpark in South Brooklyn was the second Washing- west part of an area called Crow Hill”34 on emerging ton Park, located between the parallels of First Street and trends. “The specifi c piece of land that Charley wanted Third Street and corresponding parallels of Third Avenue was east of Grand Army Plaza, down the fi rst few blocks and Fourth Avenue. It was on a north and west diagonal of Eastern Parkway and then several streets south on from the fi rst Washington Park.29 Bedford Avenue. It was bounded by Bedford Avenue on the east, Cedar Place on the west, Montgomery Street Ebbets’s exuberance, dedication, and acumen en- on the north, and Sullivan Place, misidentifi ed on later countered a formidable obstacle that put ownership and blueprints as Sullivan Street, on the south.”35 A ballpark control of the team at risk—Harry Von der Horst, owner would benefi t from the area’s development, according to of the Baltimore Orioles, saw a fi nancial opportunity in the paradigm envisioned by Ebbets. He based his vision Brooklyn. “Von der Horst received a substantial interest on his political experience and his network. in the Brooklyn team in a stock swap, picking up some of Abell’s and Chauncey’s stock as well as some of the Byrne Ebbets felt optimistic about his intended and Doyle shares when those heirs disposed of their hold- site because Brooklyn was growing on ings. Ebbets, still a minor stockholder, picked up some each side of it. He knew from his City shares in the deal and also was reelected president, while Council days and through his business Hanlon was cut in as a minor stockholder.”30 contacts just how the land would develop, and he knew that people would After the 1902 season, though, Von der Horst and be able to get to this spot largely because Abell decided to sell their respective blocks of Brooklyn of the improved service offered by the Base Ball Club stock. Naturally, Abell sold his shares Brooklyn Rapid Transit Company. A to Ebbets who also wanted Von der Horst’s shares. He handful of trolleys would pass nearby needed a fi nancial backer to fulfi ll his ambition. and so, ultimately, would the Brighton When American League president Ban line of the new subway system. Char- Johnson had his way and the Baltimore ley was seeing something the others franchise was moved to New York to weren’t.36 become the Highlanders in 1903, Brook- Ebbets’s pursuit proved costly. He invested his own lyn manager Hanlon became convinced money in the quest for a concrete stadium as wood was a that he should attempt to buy Von der fi re hazard. “Charley had kept his share of the proceeds Horst’s shares, combine them with his after an old family business property at 41 Broad Street own, and move the Brooklyn club down in Manhattan was sold, adding to it assiduously until he to Baltimore. had $125,000 saved, a threshold reached in 1907.”37 Ebbets refused to consider moving the A clear vision of the Dodgers’ future battled clouds of Superbas out of Brooklyn. All of his real estate intricacies. Ebbets needed to patiently consoli- money had gone toward purchasing date the target site in piecemeal fashion. He persisted de- Abell’s stock, but now, to outbid Hanlon spite the challenges. “[T]he land, he soon discovered, was for Von der Horst’s, he turned to a friend, encumbered by more than 40 claims of ownership, some Henry Medicus, who owned a furniture by deed, others by squatters’ rights. He spent more than company. Medicus gave Ebbets the cash three years putting the parcel together, piece by piece. He he needed, and Hanlon’s bid to control tapped all of his savings, borrowed as much as the banks the team’s fortunes and whereabouts was would lend him; and on March 5, 1912, ground for the thwarted.31 stadium was fi nally broken.”38 Hanlon continued managing the team until he left to The new park had no moniker. Ebbets responded to a manage the Reds after the 1905 season. “By 1907 Ebbets reporter’s question concerning the name by defaulting to and Medicus had bought out the remaining few shares the Washington Park label. It would have been the name that still had been held by Hanlon, consolidating their 32 had the reporter kept silent. Instead, the reporter replied, holdings.” “Why don’t you call it Ebbets Field? It was your idea and With cemented control of the team, Ebbets pursued nobody else’s, and you’ve put yourself in hock to build his vision of a modern stadium with expanded capac- it. It’s going to be your monument, whether you like to ity. He found his site in a run-down section of Brooklyn think about it that way or not.”39

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 175 Indeed, Ebbets Field stood as a monument to Charles a child with a D-plus average in school. Ebbets’ dedication to the fans, the team, and the borough Dodger fans were always able to rejoice of Brooklyn. “It had cost $750,000 to build—an exorbitant in the small victories, a well-pitched sum in those years—but it was everything Charlie Ebbets game or a rare home run that won a had hoped for. By the standards of the time, it was a game. palatial structure. It was made of concrete and steel with a tile-inlaid entrance rotunda that lent it a special distinc- The Dodger players during the dark days tion through all of its years.”40 of the Depression were blue-collar work- ers who had to scrap and scuffl e every Ebbets found a source of capital in the McKeever day on very little money, just like their brothers—Steve and Ed McKeever, successful Brooklyn fans had to, and the attempt was enough. contractors. They owned the construction company build- No matter how poorly the team was doing the ballpark. To fi nance the park’s completion, Ebbets ing, the residents of Brooklyn loved their sold 50 percent of his stock to the McKeevers. Dodgers with a lifetime, all-encompass- ing passion never seen before or since.43 On April 5, 1913, Ebbets Field opened with an exhibition game against the Yankees. The Dodgers won 3-2. Indeed, the passion fostered, nurtured, and amplifi ed Rookie Dodgers outfi elder Casey Stengel hit an inside the by the fans went deeper than watching a baseball game park home run. for entertainment, leisure, and escape. In their eyes, the Dodgers were not athletic paragons. Rather, they were 3rd Inning: The Daffi ness Boys, Uncle Robbie, and human beings with the fl aws, foibles, and failings commensurate with imperfection. Walter O’Malley Wilbert Robinson succeeded Bill Dahlen as the team’s Still, the ‘20s and ‘30s were anything manager with an enduring tenure from 1914 to 1931, but dull in the borough of Brooklyn. It infl uenced the change of the team’s name to the Robins, was during those years that the Dodgers and held power off the fi eld. When Ebbets died in 1925, began to project the image that would “[n]one of the other club offi cials knew anything about stamp their identity and fuse a bond running a baseball team. They chose the manager, love- between a team and its fans that had no able Uncle Robbie, as Dodger president.”41 equal. The image was one of adorable losers and lovable clowns, bizarre and zany Baseball in Brooklyn during the “Uncle Robbie” era free spirits who brought to each game an was poor, if not pathetic. impromptu recklessness that appeared to leave the outcome in hands other than Those Brooklyn teams, however, have be- their own. They managed to lose with come not so much the property of history more fl air than other teams could muster as of legend. They are remembered most in victory. And the fans loved them. fondly as the clown princes who brought comic relief to the game of baseball: Brooklyn, during the ‘20s, had grown outfi elders mystifi ed by the course of fl y into a haven for a largely working-class, balls; batters unable to decipher a coach’s immigrant population up from the teem- signs; runners losing their direction on ing tenements of Manhattan’s Lower the base paths. It was during those years East Side. It was a citizenry that had long that they became known as the Daffy ago learned to measure success in small Dodgers, or the Daffi ness Boys, a name doses. The Dodgers of that era were a pinned on them by the then-sportswriter team scaled to the same dimension as Westbrook Pegler.”42 their fans. They appeared to be ill-suited for prosperity and disdainful of its gifts. Despite the team’s inadequate performance on the Even when they won, they seemed baseball diamond, Brooklynites did not waver in their unable or unwilling to abide success. support, loyalty, or enthusiasm. They persevered for After winning the pennant in 1916, they reasons beyond fandom. Simply, the Dodgers served as a plummeted to seventh place; following collective identity symbol. another pennant in 1920, they fell to fi fth, To the fans the Dodgers were an exten- then to sixth a year later, and there they sion of their family, representatives of remained for six of the next seven sea- their borough, and an important part sons. Only once did they come up for air. of their lives, and they were proud of That was in 1924, and their emergence the Dodgers no matter how poorly they was quite unexpected.44 played, much as parents might still love

176 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 Wilbert Robinson was gone after the 1931 season, management. “Even before the season was out, the Dodg- replaced by Max Carey from 1932-33, followed by Casey er stockholders, led by George V. McLaughlin, represent- Stengel from 1934-1936 and Burleigh Grimes from 1937- ing the Brooklyn Trust Company, decided that MacPhail 1938. The revolving management on the fi eld paled in was no longer stable enough to run the team.”46 comparison to a change in the front offi ce infl uenced by fi nancial issues—the Dodgers faced a change in owner- At his fi nal press conference, MacPhail used statis- ship. George V. McLaughlin, president of the Brooklyn tics to prove his record, worth, and commitment to the Trust Company, held the proverbial trump card as the Dodgers. Dodgers’s creditor. It is true I spent a lot of money around Indeed, by 1937, the club’s fi nancial crisis here. I have spent about a million for had brought it to the edge of bankruptcy. ballplayers, and this year alone, I spent Its debts amount to well over a million $250,000 on repairs to the ball park. But dollars, no small sum in that era of de- I leave the Brooklyn club with $300,000 pression. McLaughlin felt he could go no in the bank and in a position to pay off farther. He told Dodger management that the mortgage. We have paid off $600,000 future credit would be severely limited we owed the Brooklyn Trust Company unless the team put itself in the hands and have reduced the mortgage another of new leadership. The Dodgers’ board $600,000, to $320,000. I have sold the ra- of directors sought the counsel of Ford dio rights for 1943 for $150,000. We have Frick, president of the National League. drawn a paid attendance of more than a They asked him if he could recommend million at home in each of the last four someone who might turn things around years, and whether we win the pennant in a hurry. Frick’s recommendation was or not, and it doesn’t look as if we will, Leland Stanford MacPhail, a former gen- since we’re two games behind with only three to play, the future of the club is eral manager of the Cincinnati Reds and 47 recently at liberty.45 bright, even under wartime conditions. In 1938, MacPhail introduced night baseball to Brook- Branch Rickey replaced MacPhail—Rickey joined the lyn. Its debut provided the background for a baseball re- Dodgers as president and general manager after the 1942 cord. Johnny Vander Meer of the Cincinnati Reds pitched season ended. He left his previous employer, the St. Louis a no-hitter against Brooklyn on June 15, 1938, an amazing Cardinals, on a high note—the Cardinals beat the Yankees feat compounded by Vander Meer’s pitching a no-hitter in the 1942 World Series. against the Boston Braves four days prior. Vander Meer’s Rickey’s transfer in 1942 to the Brooklyn consecutive no-hit games is an accomplishment not Dodgers, which led to baseball’s integra- matched since or before. tion, was as unlikely as it was unexpect- Ignominy. Sorrow. Defeat. Whatever the word of ed. Most observers deemed it unthink- choice, it aptly describes the aura surrounding the Dodg- able that Rickey would relinquish his St. ers. In 1941, the Dodgers suffered an error during the Louis post. Nor did there appear to be World Series that may have ultimately changed the series an opening in Brooklyn, where MacPhail in the rival Yankees’s favor. The Yankees led the Dodg- had rejuvenated a struggling Dodger ers in the World Series, two games to one. In Game 4 at franchise, transformed it into a pennant Ebbets Field, the Yankees had two outs in the top of the contender, and more than doubled at- ninth inning with the Dodgers owning a 4-3 lead. One tendance in four short years. In the late more out and the Series would be even at two games 1930s, however, personal differences and apiece. With a full count—3-2—on Tommy Henrich, Hugh business disagreements soured relations Casey threw a pitch that Henrich swung at and missed. between Rickey and Cardinal owner Sam The game was seemingly over, but a split-second later, the Breadon. By 1941 an irreparable breach game changed—catcher Mickey Owen could not hold on had emerged. To the surprise of the to the ball. Under baseball rules, Henrich was allowed to baseball world Rickey announced the end go to fi rst base. The Yankees then scored four runs to take of his twenty-fi ve-year Cardinal reign. a 7-4 lead. They stopped the Dodgers in the bottom of At the same time the abrasive MacPhail the ninth to secure a 3-1 lead in games. The Yankees won had alienated the Dodger owners. When the next game. The victory gave the Yankees the required he marched off to Washington to join the four games for a World Series Championship. war effort, they breathed a sigh of relief, and named Rickey to replace his former On September 24, 1942, MacPhail resigned. Simply, protégé as the Dodger general manager.48 MacPhail’s fi nancial management displeased Dodger

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 177 Another addition to the Dodgers management was the board of directors.55 “Breadon quickly became out- Walter O’Malley—engineer, attorney, and future villain or standing among the stockholders because of his interest, visionary, depending on one’s vantage point. “His Man- his enthusiasm, and his holdings; on January 13, 1920, he hattan law practice included performing legal services for replaced Rickey as president. Through that year and the the Brooklyn Trust Company. In 1941, George McLaugh- next he increased his holdings, and in November, 1922, lin, the Bank’s president, had him appointed attorney he bought 1048 shares of common stock from J.C. Jones, for the Dodgers. Within three years, he had purchased thereby gaining a controlling interest.”56 enough stock to own a 25 percent share in the club.”49 Breadon also bought out Fuzzy Anderson, owner of On November 1, 1944, O’Malley, Rickey, and Brook- the second largest block of Cardinals’ stock. Consequent- lyn insurance executive Andrew Schmitz collectively ly, he locked out Anderson from a vice presidency. Rickey bought 25 percent of the Dodger stock from the Ed McK- was also gone as team manager after the 1925 season, eever estate.50 though Breadon kept him in the Cardinals’ nest, albeit in a different capacity. On August 13, 1945, O’Malley and Rickey amplifi ed their ownership when they joined with John L. Smith, A miffed Anderson decided to sell out President of Pfi zer Chemical Company, to buy 50 percent completely and leave baseball. With of the Dodger stock through the Brooklyn Trust Com- the aid of a loan from Breadon, Branch pany. The company was one of three executors of Charles Rickey bought Anderson’s stock, which Ebbets’s estate. In this transaction, Schmitz sold his stock amounted to less than 20 percent of the to Rickey, O’Malley, and Smith. That left 25 percent of total shares. The ‘Cardinal Idea’ of com- Dodger stock owned by Steve McKeever’s daughter— munity ownership was now offi cially Dearie McKeever Mulvey.51 dead. Rickey left the Dodgers in 1950. His departure set off One of Breadon’s fi rst acts as team presi- a consequent solidifi cation of ownership of the Dodgers. dent was to offer Anderson’s vice presi- “The ownership arrangement continued until October 26, dency to Branch Rickey. He accepted the 1950, when O’Malley purchased Rickey’s shares of stock position, and it was more than just balm for $1,050,000 and became Dodger President, expanding for Rickey’s ego because he had been his ownership interest to 50 percent. Later, O’Malley pur- removed as president. Keeping a front chased stock from Smith’s estate to increase his holdings offi ce title was also important because to 66 2/3 percent, and he became the sole owner with the the National League had recently passed acquisition of stock from the Mulvey family in the early regulations preventing fi eld managers 1970s.”52 from sitting in on league councils. As vice president and the executive in charge of Rickey’s tenure with the Dodgers marked an absolute the baseball side of the Cardinals, Rickey revolution in baseball. Rickey originated the farm system would still be able to keep his fi nger on that developed younger players with raw talent when he the pulse of the other franchises in the worked for the St. Louis Cardinals. His system proved Major and Minor Leagues.57 effective—it either refi ned that talent or sifted it out. He brought that innovation to the Dogers. Rickey’s idea to buy minor league teams provided a bedrock of independence for the Cardinals and a blue- Rickey visualized a chain of minor- print for player development that soon became a baseball league teams of various classifi cations—a industry standard. Through a “farm system” that culti- kindergarten, grade school, preparatory vated, nurtured, and strengthened talent, a major league school and a university of baseball— team would logically reap benefi ts from its investment. which eventually would graduate The idea made good baseball sense and good fi nancial shining Phi Beta Kappa students of sense. the game—Hornsbys, Frisches, Sislers, Cobbs, Speakers and Mathewsons.53 Even more frugal than Rickey, Breadon liked the idea of signing players cheaply Sam Breadon offered a sympathetic ear to Rickey’s and watching them develop until they revolutionary idea. “Rickey talked about his dream at were ready ‘to ripen into money.’ The every opportunity, and in 1920 a man came along who phrase was Rickey’s, but the idea was listened to him. The man was Sam Breadon, aggressive, very palatable to Breadon, who, as a with a square jaw, and a willingness to back up his judg- 54 businessman, easily grasped the basic ment with his dollars.” principle of the farm system: buy raw In 1917, Breadon invested $2,000 in the Cardinals for talent inexpensively, watch it develop 80 shares of stock. In 1920, he invested $5,000 and joined under the best managers, coaches, and

178 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 instructors, and patiently wait to reap the Black baseball players followed Fowler. In 1884, for profi t from the fi nished product while example, Moses and Weldy Walker played for the Toledo trading away the surplus players for cash team in the American Association. While Fowler was and maybe other prospects. No longer the fi rst black player in professional baseball, the Walker would the Cardinals have to be at the brothers were the fi rst black players in major league mercy of a ‘handshake’ agreement with baseball—the American Association was a major league.60 Minor League owners for rights to Minor The tenure for black players, though, was short at the League players. Too often in the past the major league level. Minor League businessman had violated But the doors began to swing shut in the arrangement the moment a higher bid 1887 when future Hall of Famer Cap came in.58 Anson announced that he would not Rickey’s other revolution occurred when he mas- let his Chicago White Stockings take terminded integration of Major League Baseball. With the fi eld for an exhibition game against tremendous talent barred from playing in Major League Newark if Newark’s star pitcher, a black Baseball because of an unwritten yet closely held rule man named George Stovey, was al- disallowing black players, Rickey scoured the Negro lowed to play. Stovey’s manager backed Leagues for a player who embodied the mental tough- down, saying the pitcher was sick. Other ness, emotional strength, and athletic ability required to managers soon followed Anson’s lead, be a racial groundbreaker in baseball. no doubt fearing that black men would take jobs from white players. Before long, The Negro Leagues provided a deep reservoir of Newark dropped Stovey from its roster, baseball talent. Rickey’s mission was to fi nd a black and by the mid-1890s, the color line was player to be a model of baseball acumen—explosive ac- clearly set. Black athletes began forming tions on the fi eld that could help the Dodgers win base- their own teams.61 ball games combined with emotional restraint in the face of taunts, teases, and ethnic slurs. Negro League Baseball’s exalted history began in 1887 with the League of Colored Base Ball Clubs. It lasted Rickey’s selection of Jack Roosevelt “Jackie” Robinson one week.62 also marked the beginning of the end for Negro League Baseball, an entity that richly contributed to baseball’s Actually, dozens of all-black professional history. and semi-professional baseball teams played throughout the United States in 4th Inning: Soul of the Game the fi rst half of the 20th century. At the top level the best Negro League teams Although Jackie Robinson was the fi rst black Major competed in leagues that were regarded League Baseball player, a hyper-technical slice through as the black ‘majors.’ the prism of his accomplishment reveals that he was not the fi rst black professional baseball player. That accom- The Negro National League, founded in plishment belongs to John W. “Bud” Fowler. 1920 by Hall-of-Famer Rube Foster, was the fi rst fi nancially successful all-black In 1867, just two years after the end of the league. During the 1930s and 1940s a new Civil War, organized baseball made its Negro National League (formed by Gus fi rst attempt to ban blacks. The National Greenlee, owner of the Pittsburgh Craw- Association of Baseball Players refused to fords) and the Negro American League allow an all black team from Philadelphia represented black baseball’s premier to join the league. leagues, although the Negro Southern During the next twenty-fi ve years, more League and the Texas Negro League also than 50 blacks managed to play on white fi elded high caliber professional teams teams and Bud Fowler was the fi rst when and were regarded, at least by their fans, 63 he joined a white professional team in as being of major league quality. 59 New Castle, Pennsylvania in 1878. Teams sometimes relied on more than talent to lure Fowler’s place in baseball history does not, in any fans to the ballparks. Baseball, after all, is entertainment way, diminish Robinson’s immeasurable contribution to providing a leisurely distraction from the everyday pres- baseball. Robinson and those who followed him in an sures of life. Ball playing might not be enough, despite exodus from the Negro Leagues created a new vista of the excellent level of play. So, teams turned to comedy. social progress. Integration of Major League Baseball ulti- Indeed, comedy was king in the land of Negro League mately led to the end of Negro League Baseball, however. baseball diamonds.

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 179 William Brashler’s 1973 novel The Bingo Long Travel- Crow policies. They did, however, open the door for ing All-Stars & Motor Kings refl ects this aspect of Negro white America to begin embracing the idea of a black League Baseball by depicting the comedic antics of Negro superstar athlete as equal to, and perhaps superior to, League players who create their own barnstorming team. athletes in the segregated sports leagues. Sportswriters A 1976 movie of the same title stars Billy Dee Williams as took notice. “The dramatic triumphs of Jesse Owens at Bingo Long. Long creates his team after clashing with his the 1936 Berlin Olympics and his alleged snubbing by unreasonable, tightfi sted, and miserly owner. To achieve Adolph Hitler also injected the race issue into the sports independence, draw fans, and compete with the Negro pages. If Americans could cheer the efforts of Joe Louis League establishment, Long composes a team comprised and Jesse Owens, why should they object to blacks in of its players. baseball?”65 Bingo Long refl ects the deep-rooted comedic nature of For a baseball purist, integration made sense. It certain Negro League players and traveling barnstorm- would regularly pit might against might, power against ing teams who matched comedy with baseball acumen. power, and skill against skill. No longer would black stars Long’s antics as the team’s pitcher, for example, recall face white stars in barnstorming leagues or special games. those of Satchel Paige. Integration would unify the sport of baseball. Among black teams, several semiprofes- Presently, however, the Negro Leagues players, sional clubs returned to the world of teams, and owners had the same primary concern as comedy, a once prevalent aspect in black Major League Baseball players, teams, and owners— baseball’s early days that had become attendance. The antics regularly employed by teams and nearly extinct by the 1920s. Inspired by players in the Negro Leagues served the mission to draw the success of white novelty teams, black fans to the ballparks. The downside revealed itself—a promoter Charlie Henry organized the perpetuation of labels, myths, and prejudices against Zulu Cannibal Giants in the mid-1930s, black athletes. The Ethiopian Clowns, for example, trav- featuring players clad in grass skirts, eled to play teams. Though popular, the Clowns em- headdresses, and war paint. Pandering to ployed humor, fun, and nonsense at a risk. white America’s worst attitudes and most Despite the success of the Clowns, the stereotypical views of blacks, the play- club appeared unlikely to become part of ers entertained fans between games with the black professional baseball establish- various ‘comedy’ acts including staged ment. While fans valued ‘color’ in both fi ghts with spears and shields along with black and white players, the comedy a crap game featuring loaded dice and stylings of the Clowns not only appeared players brandishing razors.64 out of place in an organization striving While the antics, gimmicks, and showmanship to parallel white Organized Baseball but amused fans, they also propelled a contrast with the also seemed to cater to the expectations dawn of white America accepting black athletes in the and stereotypes of white America.66 mainstream. The dawn began with Joe Louis. Economically, though, the Negro Leagues did well. Louis was not the fi rst black boxing champion. In Excluded from playing in white Organized Baseball 1902, Joe Gans won the Lightweight Championship. In (a.k.a. Major League Baseball), black players participated 1908, Jack Johnson won the World Heavyweight Champi- in a black business enterprise for a largely black customer onship. But Louis’s bouts against Schmeling went deeper base. than black versus white. They indicated a geopolitical pressure beyond race because of the Nazi rise to power in During the fi rst three decades of the 1930s Germany, Schmeling’s home country. twentieth century, white Organized Base- ball, like numerous other major American Louis lost his fi rst fi ght with Schmeling. It took place industries, ignored or evaded the issue on June 19, 1936 at Yankee Stadium in Bronx, New York. of integration. Moreover, despite scat- Yankee Stadium was the site for the rematch on June 22, tered protests from both African Ameri- 1938. Louis pummeled Schmeling for a technical knock- cans and whites, no sustained articulate out in the fi rst round. movement emerged to admit black players to major or minor league teams. Jesse Owens struck another Nazi nerve when he dom- Discouraged by white indifference and inated the 1936 Summer Olympics in Berlin by winning hostility, many blacks viewed economic four track and fi eld gold medals for the United States. self-development, rather than agitation, The victories of Louis and Owens neither changed as a more sensible and fruitful path to social mores overnight nor triggered a revolution in Jim follow. The establishment of the fi rst

180 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 permanent leagues during the 1920s re- Negro Leagues, for example, Buck O’Neil. Integration fl ected this trend, creating opportunities not only posed an economic threat to the Negro Leagues, for black players in a structure separate however, it also jeopardized the profi table bottom line for but roughly parallel to white professional Major League Baseball. organizations.67 In fact, major league baseball [sic] had an With integration hovering over baseball as a post- investment to protect, and that invest- World War II reality, the Negro Leagues were vulnerable. ment was in segregation. Many clubs A possible solution would be to integrate the leagues in a rented their ballparks when they traveled formal business alliance. By joining forces with Organized to Negro League teams. The Yankees, Baseball, the Negro Leagues would insure against dis- White Sox, and Washington Senators, for solution, a likely prospect given the lack of formal infra- example, commonly earned more than structures. The question for team owners in the Negro $100,000 a year by hiring out Yankee Leagues, then, was not one of social progress, but one of Stadium, Comiskey Park, and Griffi th fi nancial survival. Stadium for Negro League games. It was a steady, almost leisurely source of If some owners were truly resistant, their income that major league owners wanted response was typical of other black entre- to keep.69 preneurs who recognized the long-term social benefi ts of integration but feared its Despite the negative fi nancial impact, integration immediate negative economic ramifi ca- was inevitable. Integration required a delicate selection tions. Removed from its segregated con- process because the fi rst black baseball player in Major text and stripped of its best players, black League Baseball would, in effect, be alone—the price professional baseball as an enterprise ap- of his success would be isolation. No one would know peared unlikely to achieve the same level his challenges precisely because no one had suffered of prosperity. Fay Young, however, noted them previously. He would need superhuman emotional that white minor league teams remained strength to endure vicious taunts, slurs, and insults based viable despite selling their top players on ignorance, prejudice, and bias while proving his worth and questioned why the NNL and NAL on the baseball diamond. He would not succeed on talent could not follow a similar pattern. More- alone. over, player sales to Organized Base- ball might offset any loss in patronage, Branch Rickey masterminded the search for the fi rst although several owners doubted they black baseball player from the Dodgers offi ces at 215 would receive true market value for any Montague Street in Brooklyn. On October 23, 1945, he of their men. [Newark Bears owner] Effa formally completed the search as the player signed a con- Manley, for instance, correctly observed tract with the Dodgers. that ‘Negro baseball isn’t organized to The player was Jack Roosevelt Robinson—the First. the point where we’d be protected if the big leagues suddenly decided to let in colored players. In fact, they could walk 5th Inning: Did You See Jackie Robinson Hit That in and grab off any player they wanted Ball? for any named amount of money without In a review of the 1981 Broadway play The First, base- the owner getting a nickel.’ ball historian Robert W. Creamer summarizes Robinson’s attributes in praising Robinson’s portrayer. “David Alan Affi liation with white Organized Baseball Grier, the 25-year-old Yale Drama School graduate who offered the only solution that might allow plays Robinson, evokes the fi rst black major-leaguer’s black professional baseball to function imposing presence, his intelligence, his restlessness, his within an integrated setting. Black base- smoldering fury. Without resorting to obvious imitation, ball would not only gain protection from Grier re-creates Robinson’s distinctive pigeon-toed walk, potential major league raids and pos- the way he ran with his hands fl ailing in front of him, the sible fi nancial assistance but would also arrogant, dignifi ed curl of his lip.”70 receive the same rights as other minor league organizations.68 Indeed, Robinson volcanically exploded on the baseball diamond. Ability was not the only reason that The Negro Leagues boasted unparalleled talent. inspired Rickey to sign Robinson, though. Rickey saw the Indeed, many players vaulted to the majors after Jackie Negro Leagues as a providential gold mine of baseball tal- Robinson broke the color line—Satchel Paige, Willie ent, but he needed someone with the emotional strength Mays, Hank Aaron, Monte Irvin, Roy Campanella, Ernie to withstand a cauldron of prejudice, bigotry, and intoler- Banks, to name a few—while some players stayed in the

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 181 ance in the era of separate but equal. He needed someone thinking of establishing a new Negro to react to taunts, slurs, and teases solely with sheer base- League with a franchise in Brooklyn; that ball prowess—stolen bases, brilliant base running, and was why his scouts were out assessing clutch hitting—instead of fi sts, punches, and insults. the available talent.72 The candidate did not have to be the best Rickey labeled the new six-team Negro League— black ballplayer, though he naturally United States League (USL). At a press conference on May needed superior skills. Rather, he had to 7, 1945, Rickey announced a 100-game schedule to begin be the most likely to maintain his talents in June 1945 with six teams—Brooklyn, Chicago, Detroit, at a competitive peak while withstanding Pittsburgh, Philadelphia, Toldeo.73 The USL provided pressure and abuse. He needed the self- a Trojan horse. Rickey could dispense scouts under the control to avoid reacting to his tormen- guise of looking to fi ll the roster of his new USL team, the tors without sacrifi cing his dignity.71 Brooklyn Brown Dodgers. Although the USL did not get off the ground, it proved valuable for Rickey as he moved Notwithstanding the play of Fowler and the brothers forward with his plan to integrate the Brooklyn Dodgers. Walker in the latter part of the 19th century, the fi rst black baseball player in the 20th century would get the recogni- In August 1945, Rickey dispatched Clyde Sukeforth tion, accolades, and hero worship commensurate with to evaluate Robinson. Sukeforth was a ten-year Major breaking the color barrier. Rickey’s search for that player League catcher. “Earlier in the 1945 season, at age forty- culminated in choosing Robinson, but it was neither easy three, Sukeforth had even caught some games for the nor simple. Dodgers when Leo Durocher’s squad was strapped for healthy bodies.”74 It began during World War II as major league baseball players served in uniform. Sukeforth was the only Rickey evaluator who had not yet seen Robinson play. On August 24, 1945, Suke- The Dodgers had won the pennant in forth met Robinson at Comiskey Park in Chicago. After 1941 and just missed a year later, but the introducing himself as a Brooklyn Brown Dodgers scout, call to service had depleted their roster. Sukeforth requested that Robinson make a few under- Many of their stars would be past their hand throws from shortstop to fi rst base, which Sukeforth primes by the time the war ended. It manned in his street clothes. The scout invited Robinson was not too soon to plan for the future. to travel to Brooklyn and meet Rickey.75 In January 1943, Rickey took his case to George V. McLaughlin. The Brooklyn On August 28, 1945, Rickey revealed that the Brook- Trust Company, at the time, controlled lyn Brown Dodgers team was a ruse, at least as it con- 50 percent of the Ebbets family’s stock in cerned Robinson. “I want you to play for the Brooklyn the team, and McLaughlin’s position was Dodgers organization. Perhaps on Montreal to start stronger than ever. Rickey knew exactly with.”76 The Montreal Royals was the Brooklyn Dodgers’ how to approach him. He emphasized Triple-A minor league team. the need to search for new talent and said that he wanted to step up his scouting Rickey then explained an intangible requirement operation. Almost parenthetically, he concerning Robinson’s emotional fortitude. added that he might consider looking at Branch Rickey, the dramatic actor man- some Negro prospects. The integration qué, Lionel Barrymore playing Thaddeus of the major leagues was inevitable, he Stevens, began to describe vividly and explained, and New York, a liberal city, act out physically the threats Robinson would be the right place to start. Besides, would endure as the fi rst black player in Rickey pointed out, it would be great for twentieth-century Major League Baseball. attendance. McLaughlin responded as Rickey took off his jacket and got down Rickey expected a practical businessman on the fl oor, imitating a base runner would. sliding into second, kicking Robinson in ‘If you’re doing this to help the ball club, the shins, imitating the actions of a racist go ahead,’ he said. ‘But if you’re doing it opponent barreling into Robinson with for the emancipation of the Negro, then spikes vengefully high. He probably forget it.’ shouted the ‘n’ word and voiced other epithets that opponents would yell at That was all the encouragement Rickey Robinson. He asked the stunned athlete needed. The search for the right black how he would react when white waiters ballplayer began immediately. To assure wouldn’t serve him on the road, railroad its secrecy, Rickey announced that he was conductors turned their backs on him,

182 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 and other situations of discrimination in motion. Robinson wanted to go overseas to serve in in America arose that Rickey deplored combat, but the Army required a physical examination but felt that he could change through the and a waiver “[r]eleasing the Army from any fi nancial actions of a great black baseball player. claim or benefi t in case of reinjury to his ankle.”81 The key to the success, Rickey stressed, Stationed at Camp Hood (now Fort Hood) near was that Robinson could not fi ght back Killeen, Texas, Robinson was a patient undergoing an against the indignities.77 examination at McCloskey Hospital in Temple, Texas. He An astute baseball executive, Rickey assessed Rob- left the hospital to return to Camp Hood at approximately inson as a player with potential for the future, if not the 5:30 p.m. Camp Hood was about an hour’s drive from the moment. “He is not now major league stuff.”78 Rickey hospital. Robinson went to the colored offi cers’ club at the sent Robinson to the Montreal Royals of the International camp around 7:30 p.m. He began the return trip back to League for the 1946 season. “Rickey’s intention was to the hospital around 11:00 p.m. when he boarded a Camp give fans and players more time to get used to the idea of Hood bus.82 integration, and to give Robinson more time to polish his skills. And if problems arose, better to have them arise in Robinson refused to move to the back of the bus. “On Montreal than in Brooklyn.”79 the ride from Temple to the camp, Robinson had obeyed Texas law requiring Jim Crow seating on the bus. But he Jackie Robinson was not merely a baseball player also knew that the Army now forbade segregation on its who could run, hit, fi eld, and throw. He was a graduate of military bases.”83 UCLA—the fi rst UCLA varsity letterman in four sports: track, baseball, basketball, and football. He was also a The bus driver, Milton N. Renegar, called the Military military offi cer. Police. On August 2, 1945, Jackie Robinson’s court-martial began—The United States v. 2nd Lieutenant Jack R. Robinson, Robinson’s military service occurred because of the 0-10315861, Cavalry, Company C, 758th Tank Battalion— draft in World War II. Jim Crow still ruled, so Robinson with nine men hearing the case. Conviction required six ran into massive obstacles at Fort Riley, Kansas prevent- votes. Robinson secured a vote of not guilty.84 ing him from serving as a United States Army offi cer. Joe Louis, the championship boxer, intervened. The United States Army gave Robinson an honorable discharge on November 28, 1944.85 A chance encounter At Fort Riley in 1942, Louis used his pres- gave Robinson his next career move. “One day, passing tige to try to help the young black men, by a baseball fi eld at Camp Breckinridge in Kentucky, including Robinson, who wanted to be Jack notices a black man snapping off some impressive offi cers, although exactly what he accom- curves. The player turned out to be Ted Alexander, now a plished is open to question. According soldier, but previously a member of the Kansas City Mon- to Louis’s old friend Truman K. Gibson, archs in the Negro National League. Suddenly it occurred an attorney who was then an assistant to Jack that this might be an avenue worth pursuing.”86 to William Hastie, the black civilian aide to the secretary of war, Louis telephoned Following Alexander’s counsel, Robinson sent a letter to the owner of the Monarchs, Thomas Y. Baird, inquiring him about Robinson’s plight. Gibson then 87 fl ew to Fort Riley to investigate condi- about opportunity. Baird gave him one. tions there. At a meeting organized by In 1945, America mourned the death of President Louis, he met with Robinson, Louis, and Franklin Delano Roosevelt, celebrated its victory in World other blacks to hear their grievances. On War II on V-E Day and V-J Day, and continued going to another occasion, Gibson pointed out that ballparks to watch great athletes play the game linked by the wheels were already in motion to take lore to Abner Doubleday. Jackie Robinson played in some those men toward OCS. What is certain of those ballparks for the Kansas City Monarchs, albeit is that after waiting in limbo for about within a societal structure segregating him and other three months, Jack and a small group of great baseball talent. other blacks at Fort Riley were accepted into OCS. Around November 1, and after Rickey’s selection of Robinson broke the segregation Jack had served for some time as a squad barrier. Robinson spent the 1946 season playing for the leader, they began their thirteen weeks Montreal Royals. To say that Robinson was dominant in of training in a class of just over eighty his debut would be an understatement. On April 18, 1946, candidates.80 the Royals played the Jersey City Giants at Roosevelt Field in Jersey City. Robinson went 4-for-5, hit a home Robinson then found himself the target of a court- run, stole two bases, and scored four times. The Royals martial when he refused to move to the back of a bus on won the game 14-1. July 6, 1945 in Texas. A bad ankle set the relevant events

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 183 Robinson won the International League’s Most Valu- On April 15, 1947, Jackie Robinson faced pitcher able Player Award with a .349 batting average, 66 Runs Johnny Sain and the Boston Braves at Brooklyn’s Ebbets Batted In, and 113 Runs Scored. He contributed greatly to Field. Robinson went 0-for-3 in his debut. a team that won the 1946 Little World Series against the Rickey believed in him. The Dodgers played with Louisville Colonels. The time had come for Jackie Robin- him. The fans cheered for him. Yet he was alone on the son to climb up to the top rung of the baseball ladder— fi eld, in the dugout, and in the clubhouse as the only Major League Baseball. black baseball player in Major League Baseball. Within the Dodger enclave, however, resistance built Alone to receive the taunts and not fi ght back. around a group of Southern veterans: Hugh Casey— Pitcher (Georgia), Kirby Higbe—Pitcher (South Carolina), Alone to live up to expectations of Rickey. Bobby Bragan—Catcher (Alabama), Dixie Walker— Outfi elder (Alabama). Carl Furillo, an outfi elder from Alone to set the standard for every Negro League Reading, Pennsylvania, also opposed Robinson’s playing player who thought of following Robinson. for the Dodgers. In his 1967 memoir The High Hard One, At an Ebbets Field homestand against the Phillies, Higbe claimed that he, along with Walker, Bragan, Furillo, the Dodgers consolidated behind Robinson when Phil- and shortstop Pee Wee Reese, complained to Rickey. lies Manager Ben Chapman led a tirade of verbal slurs. A Higbe alleged that Reese “[c]hanged his mind about play- native of Alabama, Chapman crossed over the undrawn 88 ing with Robinson.” line of bench jockeying. “The Phillies verbal assault The opposers were steadfast. “But few outsiders on Robinson in 1947 exceeded even baseball’s broadly knew the full extent of the players’ opposition. Just before defi ned sense of propriety. Fans seated near the Phillies the start of the three-game series in Panama [against the dugout wrote letters of protest to Commissioner Chan- Montreal Royals], a petition began to circulate seeking to dler, and newsman Walter Winchell attacked Chapman keep Robinson off the Dodgers.”89 on his national Sunday night broadcast. Chandler notifi ed Philadelphia owner Robert Carpenter that the harassment The southern uprising threatened Rickey’s design of Robinson must cease or he would be forced to invoke to integrate baseball and, consequently, improve the punitive measures.”91 Dodgers’s chances to compete effectively in the National League. Rickey needed to stop the snowball of complaint Eddie Stanky, the Dodgers second baseman, reached before it became a destructive avalanche. He turned to the his boiling point by the third and fi nal game of the series. team’s manager, Leo Durocher. “Listen, you yellow-bellied cowards,” he cried out, “why don’t you yell at somebody who can answer back?”92 Durocher gathered the Dodger play- Rickey stated that the Phillies incident anchored Robin- ers for a midnight meeting in a kitchen son as a Dodger teammate. “When [Chapman] poured behind the mess hall where the team ate out that string of unconscionable abuse he solidifi ed and its meals. With sleepy athletes sitting on unifi ed thirty men, not one of whom was willing to sit by chopping blocks and counters or leaning and see someone kick around a man who had his hands against stoves and refrigerators, Duro- tied behind his back.”93 cher, bedecked in pajamas and a bright yellow bathrobe, harangued his troops Robinson granted a request by Rickey to pose for a about the Robinson situation. ‘I don’t photograph shaking hands with Chapman. “Mr. Rickey care if a guy is yellow or black, or if he thought it would be gracious and generous if I posed for a has stripes like a fuckin’ zebra,’ [Dodg- picture shaking hands with Chapman. The idea was also ers Traveling Secretary Harold] Parrott promoted by the baseball commissioner. I was somewhat quotes Durocher as saying. ‘I’m the sold—but not altogether—on the concept that a display manager of this team and I say he plays.’ of such harmony would be ‘good for the game.’ I have Durocher barked to the rebels to take the to admit, though, that having my picture taken with this petition and ‘wipe your ass with it,’ be- man was one of the most diffi cult things I had to make 94 cause Robinson was ‘going to put money myself do.” 90 in your pockets and money in mine.’ Rickey’s old team, the St. Louis Cardinals, presented Rickey and Durocher identifi ed the threat, acted another racist obstacle. Stanley Woodward, a sports editor quickly, and calmed a potential fi restorm. The dissidents for the New York Herald Tribune, broke the story about a acquiesced. Rickey took further action by trading Higbe Cardinals strike possibly being the tip of an iceberg for an to the Pittsburgh Pirates. Robinson would open the 1947 entire National League strike. In The Era, Roger Kahn de- season as a Brooklyn Dodger. scribes the chain of events leading to Woodward’s story, beginning with the team doctor for the Cardinals.

184 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 The Cardinals’ team physician, a doc- pursuing a great scoop, Rennie turned the story’s reins tor named Robert Hyland, liked to hear over to his sports editor, Stanley Woodward. Woodward’s himself described as the surgeon general story got published in the May 9, 1947 edition of the of baseball. Like most team physicians, Herald Tribune. Woodward won the E.P. Dutton Award for Hyland was a ball fan and he enjoyed best sports reporting in 1947.98 the camaraderie of major league athletes. In 1947, Robinson played in 151 of 154 games, had Someone, no one remembers who, told a .297 batting average, got 175 hits (including 12 home Hyland of the strike plan. Hyland sought runs), stole a league-leading 29 bases, drew 74 walks, out Terry Moore, the St. Louis captain, scored 125 runs, and struck out 36 times. For his efforts, called ‘the greatest center fi elder I ever effectiveness, and effi ciency, Robinson received the Na- saw’ by Joe DiMaggio. Moore was thirty- tional League Rookie of the Year Award. fi ve years old, approaching the end of an outstanding career. Jackie Robinson had the unquestioned support of his boss, his teammates, and baseball’s inner sanctum of Hyland told Moore that he had heard power. A golden era of baseball launched, while the sun about the strike and that the play- began to set on the Negro Leagues. ers ought to be pretty damn careful. He wasn’t saying anybody had to like ‘nigras.’ He just wanted to tell them they 6th Inning: Wait ‘Til Next Year 95 were heading for trouble. The Brooklyn Dodgers lost the ’47 World Series to Hyland revealed the strike plan to Sam Breadon, the their cross-town rivals—the New York Yankees. The battle owner of the Cardinals. The Cardinals were in New York began a pattern that continued throughout the next ten City for an upcoming series against the Dodgers. “Dr. Hy- years. During this heyday of New York City baseball, land felt honor bound to report what he knew to his em- the Brooklyn Dodgers captured an essence of magic, ployer, fl inty old Sam Breadon, who was now planning to mourning, and majesty that courses through fans of the sell the Cardinals to secure himself a pecunious quiet old Brooklyn Dodgers decades after the team left for Los age. Breadon was no social activist, but as a businessman Angeles. It is an essence unfamiliar to other teams that no he recognized that the strike could tear down the value of longer play in their origin cities—Philadelphia Athletics, his franchise.”96 Washington Senators, St. Louis Browns, New York Giants, Boston Braves, Milwaukee Braves. After going to the New Yorker Hotel to meet with some of the Cardinals players, Breadon confi rmed the Roger Kahn covered the Dodgers in 1952-53 for The strike plan. He then debriefed Ford Frick, President of New York Herald—a dream job, considering Kahn grew up the National League. In turn, Frick met with the potential fervently following the team. In his 1972 landmark book strikers individually at Ebbets Field on May 6, 1947. He The Boys of Summer, Kahn catches up with the Dodger laid down the law in no uncertain terms. standouts from the glory years. He recounts their exploits on and off the fi eld through the eyes, opinions, and If you strike, you will be suspended from memories of a young reporter. the league. You will fi nd the friends you think you have in the press box will not One did not go to Ebbets Field for sociol- support you. You will be outcasts. I do ogy. Exciting baseball was the attraction, not care if half the league strikes. Those and a wonder of the sociological Dodgers who do will encounter quick retribu- was the excitement of their play. It is not tion. All will be suspended. I don’t care simply that they won frequently, brawled if it wrecks the National League for fi ve with umpires, got into bean-ball fi ghts years. This is the United States of Amer- and endlessly thrashed in the headwaters ica and one citizen has as much right to of a pennant race. The team possessed an 99 play as another....You will fi nd if you go astonishing variety of eclectic skills. through with your intention that you will Kahn eloquently describes the assets of the men he 97 have been guilty of complete madness. once knew as idols whose collective domain of Ebbets Hyland also revealed the strike plan to a member Field inspired a borough. of the fourth estate—Rud Rennie of the New York Herald There [at third base], squinting in a Tribune. Hyland and Rennie sang together in a barbershop crouch, Billy Cox, a wiry, horse-faced quartet. Rennie knew that if he wrote the story, Hyland’s man with little blacksmith’s arms, waited position as a confi dential source might be compromised to spring. He subdued hard grounders because of the friendship. Even an amateur sleuth could by slapping his glove downward and fi gure out the connection. To protect his friend while

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 185 imprisoning the ball between glove and The Dodgers commanded abiding loyalty from the earth. The glove was small and black and Brooklyn denizens in their bandbox of a ballpark. Unlike ancient. Someone accused Cox of having the New York Giants’ cavernous Polo Grounds in Upper purchased it during a drugstore close- Manhattan or the New York Yankees’ stately Yankee Sta- out. With the Whelan glove, Cox was a dium in the South Bronx, the Brooklyn Dodgers’ Ebbets phenomenon. Field stood as more than a stadium—it was a beloved neighborhood landmark. Players walked to and from Drives to right fi eld activated stolid Carl work; they lived among their fans in the neighborhood’s Furillo. A powerful monolithic man, Fu- environs. rillo possessed an astonishing throwing arm and a prescient sense of how a ball Loyalty came with a price, though. That price was would carom off the barrier. The grand- disappointment. Dodgers fans affectionately, disparag- stands did not extend behind right fi eld. ingly, and consistently referred to the Dodger players as Between the outfi eld and the sidewalk of “’Dem Bums” because of their woes on the fi eld.102 The Bedford Avenue, a cement wall rose slop- Dodgers lost the World Series to the Yankees fi ve times ing outward. It straightened at about ten during the post- World War II “Glory Years” of New York feet and then fi fteen feet higher gave way City baseball—1947, 1949, 1952, 1953, and 1956. to a stiff screen of wire-mesh. In straight- In 1950, the Dodgers lost the National League pen- away right a scoreboard jutted, offering nant to the Phillies on the last day of the season. In another surface and describing new August 1951, the Dodgers held a 13-game lead in the angles. Furillo reigned here with an arm National League standings; the lead evaporated. On the that, in Bugs Baer’s phrase, could have last day of the season, the Dodgers and Giants were tied. thrown a lamb chop past a wolf. To decide the National League title, the teams played a Center fi eld belonged to [Duke] Snider, three-game playoff. After splitting the fi rst two games, rangy and gifted and supple. Duke could the cross-town rivals played the crucial third game on get his glove thirteen feet into the air. October 3, 1951. In storybook fashion, a bottom-of-the- The centerfi eld wall was cushioned with ninth home run won the game, immortalized the hitter, foam rubber, and Snider, in pursuit of and created a new chapter in Dodgerdom misery, hope- high drives, ran at the wall, dug a spiked lessness, and despair. Carl Erskine might have been the shoe into the rubber and hurled his body Dodgers pitcher at the game’s pivotal moment if not for a upward. Pictures of him in low orbit comment from one of the Dodgers’ coaches. survive.100 The Giants won Game 1. The Dodgers Kahn’s description of Jackie Robinson, though, goes won Game 2 when Clem Labine hurled beyond the mere description of athletic skill. It highlights a 10-0 shutout. [Don] Newcombe had the passion for excellence that separates great ballplayers the start for Game 3 and took a three- from good ballplayers. run lead into the ninth inning. [One run scored] and two ‘seeing eye’ base hits Robinson could hit and bunt and steal brought the potential winning run to and run. He had intimidating skills, and home plate in the person of Bobby Thom- he burned with a dark fi re. He wanted son. [Manager] Charlie Dressen called passionately to win. He charged at ball the bullpen at the Polo Grounds, where games. He calculated his rivals’ weak- Branca and I were warming up. Clyde nesses and measured his own strengths Sukeforth answered the phone. ‘They’re and knew—as only a very few have ever both ready,’ he said. ‘However, Erskine known—the precise move to make at is bouncing his overhand curve.’ Dressen precisely the moment of maximum effect. said, ‘Let me have Branca.’ On Ralph’s His bunts, his steals, and his fake bunts second pitch, Thomson hit a three-run and fake steals humiliated a legion of homer to win the game and the pennant. visiting players. He bore the burden of a Whenever I’m asked what my best pitch pioneer and the weight made him more 101 was, I say, ‘The curveball I bounced in the strong. Polo Grounds bullpen.’103 Ebbets Field’s magic inspired reverence compared to Giants announcer Russ Hodges’ exclamation “The other ballparks laid to rest in the baseball graveyard— Giants Win the Pennant! The Giants Win the Pennant!” books, songs, and eulogies simply do not exist in signifi - fi nalized the ruined hopes of another Dodger season. cant form for Shibe Field, Sportsman’s Park, or Milwau- The Phillies and Giants also fell short against the Yankees kee County Stadium. in the World Series in 1950 and 1951 respectively. In the

186 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 years immediately following World War II, the Yankees Giants games showcased these ballparks. dominated the World Series from 1949 to 1953. New York We had only known about them previ- City was the center of the baseball universe. ously from newspaper stories or radio broadcasts. It was the beginning of a Brooklyn was a planet within that universe. It re- fruitful future. volved around the sun of Ebbets Field. Ebbets Field was not merely a part of the Brooklyn landscape—it was inte- Television secured baseball’s place as gral to life in Brooklyn. Joel Hecker, an attorney and the king of the sports kingdom. To me it still father of Entertainment, Arts and Sports Law Journal Editor is. I appreciate the talent these players Elissa D. Hecker, recalls the unique aura of Ebbets Field have. I played baseball in high school and and its consequent, seemingly cemented place in Brook- college. I also played semi-pro baseball lyn’s infrastructure. and I had a tryout with the Pittsburgh Pirates. There’s nothing more diffi cult Ebbets Field was on the street. It was than hitting a baseball coming at you at downtown. You could walk to the sta- 90 miles an hour.105 dium or you could take a trolley or bus to get there. The only recent ballpark that Despite Brooklyn’s deep frustration at the beloved compares is Petco Park in San Diego. The Dodgers’s perpetual succumbing to the Yankees in the players were accessible. Before New York World Series, edging out by the Phillies for the 1950 Na- City annexed Brooklyn in 1898, Brook- tional League pennant on the last day of the season, and lyn was a city. It really has never lost its the crumbling to the Giants that forced a three-game play- cohesiveness as a city—Brooklyn was off capped by Thomson’s excruciating home run for the Brooklyn. You only went to Manhattan to 1951 National League pennant, Dodger Nation remained see a show. The ballpark was integral to loyal, vigilant, and true. In 1955, Brooklyn’s unbending Brooklyn.104 dedication to Jackie, Campy, Newk, Oisk, and the rest of the Dodgers resounded in 1955 with the raging glory From the warm renaissance of spring through the of the only World Series championship for the Brooklyn cool breezes of fall, Brooklynites did not merely follow Dodgers.106 the Dodgers as a hobby. The Dodgers were a part of the everyday life in Brooklyn. You could walk down the The 1955 World Series went the full seven games. street and not miss a pitch because homes and cars had Johnny Podres led the team in Game Seven with expert radios tuned in to the game. Each spring, of course, held a pitching, albeit, competing against a Yankee lineup with- promise of new hope for Dodgers fans. The familiar cry of out the fearsome, formidable, and ferocious bat of Mickey “Wait ‘Til Next Year” had subsided because next year had Mantle. Nonetheless, the streets of Brooklyn echoed with arrived on Opening Day—it signaled the start of hopes, exuberant shouts of victory. The beloved Dodgers beat the dreams, and wishes. Indeed, Opening Day was the big- rival Yankees. gest day in the borough of Brooklyn. But fi nally, just once, in October 1955, the The Golden Era of Baseball decade from 1947 to 1957 gods of baseball dozed off, the cruel laws marked the racial integration of baseball, the dominance of the universe momentarily relaxed, of New York City teams, and the increasing power of and—thanks to a cocky young pitcher television in the sports industry. Stadiums that fans had and a miraculous catch in left fi eld [by only read or heard about became visualized through the Sandy Amoros] and Mickey Mantle’s grace of technology. A true baseball fan, Harold Fried- gimpy leg—the Dodgers beat the Yan- man enjoyed a baseball-fi lled childhood in northern New kees, setting off an orgy of multicultural Jersey that concurred with the Golden Era of Baseball celebration (with occasional arson) from and television’s concurrent, explosive, and commanding Greenpoint to Sheepshead Bay.107 dominance in the American culture. The heartbreak healed. The joyfulness exuded. The During this time, I grew up from four confi dence improved. There would be no more waiting years old to 14 years old. I couldn’t wait ‘til next year. Dem Bums were the kings atop baseball’s to get up in the morning to look at the royal hierarchy. box scores. Baseball was everything. Ev- ery kid played the game. I always wanted The architect of team, however, was gone. Branch to see other parks like Crosley Field in Rickey left the Dodgers in October 1950, his departure Cincinnati, Shibe Park in Philadelphia, or triggered by the death of John L. Smith in July. Conse- Fenway Park in Boston. NBC’s broadcast, quently, Smith’s share of the Dodgers was in play. Rickey Game of the Week and the local stations found his own position vulnerable, despite his ownership broadcasting the Yankees, Dodgers, and stake.

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 187 As long as John L. Smith was alive, Zeckendorf would offer O’Malley $1 mil- Rickey’s tenure in Brooklyn had been lion for Rickey’s slice, nearly three times secure. The baseball executive might not his partner’s initial bid. Although the get the contract extension he wanted as Brooklyn lawyer would likely be suspi- long as O’Malley was on the board of di- cious of someone wanting to buy only rectors, but Smith came from a chemical one quarter of the team, he would have industry where executives did not receive to match the bid if he wanted to be rid of contracts. If their work was good, they his rival. Rickey would receive the $1 mil- stayed on; if not, they were gone.108 lion, leave Brooklyn, and be welcomed with open arms into Galbreath’s Pitts- O’Malley took advantage of the open window of burgh Pirates organization. A fi nal twist opportunity to secure a larger stake of ownership in the to the plot was that if O’Malley met Zeck- Dodgers. endorf’s price, he would also have to pay O’Malley quickly won from Mrs. Smith the realtor an additional $50,000, the cost the voting rights to her family’s quarter of having ‘tied up’ Zeckendorf’s capital ownership of the team. The ambitious during his unsuccessful bid for the team. partner now controlled 50 percent of the The real reason for the extra $50,000 was team, Rickey held 25 percent, and Jim Galbreath’s idea of giving a gift of an and Ann Mulvey continued to hold on to extra $50,000 to Branch Rickey.111 their quarter of the team.109 Rickey’s legacy of integration bestowed an honor on Clearly, O’Malley’s maneuvering indicated a quest for Ebbets Field as a landmark of social justice. His legacy, consolidation of power, infl uence, and resources. Rickey however, ignited the disintegration of the Negro Leagues enjoyed a sacred reputation, but his clout faced risk of as Robinson paved the way for other Negro League stars diminishment because of O’Malley. In turn, Rickey’s to bolt to the Major Leagues. The Boston Red Sox ballclub prospects as a voice of importance in the Dodgers organi- was the last team to integrate when Elijah “Pumpsie” zation became steeped in hierarchy. Green took the fi eld for the Sox in 1959. “Meanwhile, last-ditch attempts to secure a subsidy from major league He did not want to leave, but if he didn’t baseball elicited only a lukewarm response and ultimately sell he might fi nd himself working for failed to materialize. In 1963, the NAL [Negro American O’Malley after his contract expired in League] fi nally collapsed, a development that concerned October. Branch Rickey could never work few African American fans, many of who were unaware under anybody after all he had achieved of the league’s continued existence.”112 in baseball, especially for someone who had been maneuvering against him for Rickey was gone, the Negro League teams were fad- years and who would certainly demand ing, and Brooklyn’s association with the Dodgers was economies in his operation. approaching an ominous end that rocked the borough to its core. The only card Rickey had to play was a clause in the original 1945 agreement that stated that if any of the three partners 7th Inning: Heraclitus’ River Runs Through wanted to sell, the other partners would Southern California have to match the offer. Rickey needed David Ritz’s 1981 fantasy novel The Man Who Brought a fi nancial angel who could get him a the Dodgers Back to Brooklyn presents a dream of every better price for his Dodgers stock than Brooklyn Dodgers fan. A wealthy man with roots in O’Malley’s lowball offer.110 Brooklyn buys the Dodgers, returns the team to Brooklyn, and rebuilds Ebbets Field. John Wilmer Galbreath was that angel. Galbreath was part of a group that bought the Pirates in 1946. He was Would that it were so. also the team’s chairman of the board. Galbreath wanted Rickey to do for Pittsburgh what he did for Brooklyn— O’Malley moved the Dodgers to Los Angeles after the build a winning team. Galbreath, a commercial real estate 1957 season. He left a scar of epic proportions that thinly mogul, hatched a scheme with a fellow member of the covers a massive wound of physical, emotional, and psy- real estate brethren—New York City’s William Zecken- chic pride. O’Malley’s decision, however, did not come dorf—to bid on Rickey’s share of the Dodgers, raise its lightly nor did it come frivolously. He wanted to stay in value, and strategically succumb to O’Malley’s counterof- Brooklyn. Robert Moses, New York City’s urban planning fer. Result: A lucrative payday for Rickey, the freedom to goliath, held the key to O’Malley’s wishes. Moses was the join the Pirates organization, and the sadness of leaving Chairman of the Triborough Bridge Authority, the major the Dodgers.

188 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 infl uence on New York City’s urban design in the 20th The Dodgers’ competition for Los Angeles baseball century, and a masterful power broker.113 fans was and still is the American League’s expansion team that debuted in 1961—Los Angeles Angels, later O’Malley wanted to abandon aging Ebbets Field for renamed the California Angels, Anaheim Angels, and, a new stadium that he would fi nance, build, and use currently, the Los Angeles Angels of Anaheim. at the corner of Atlantic Avenue and Flatbush Avenue. O’Malley’s site choice refl ected strategic thinking. The The 1950s was a decade of geographic transition for Long Island Railroad had a major hub at the location. It the national pastime. In 1953, the Boston Braves became would serve the fans who left Brooklyn for the suburbs the Milwaukee Braves. In 1954, the St. Louis Browns and, consequently, could no longer make a pedestrian became the Baltimore Orioles. In 1955, the Philadelphia trek to Ebbets Field. Plus, a new parking garage adjoining Athletics became the Kansas City Athletics. the stadium would logically increase convenience for fans who traveled by automobile. Los Angeles presented an awesome beachhead opportunity for a migrating ballclub in the late 1950s. With Moses refused O’Malley’s request to condemn the the two minor league teams eliminated as competition land in question. He offered an alternative site at Flushing and the California Angels a few years from creation, a Meadows that eventually became the site of Shea Stadium major league team would dominate the Los Angeles base- in addition to an integral part of the 1964 World’s Fair. ball market. The National League set an October 1, 1957 O’Malley wanted Brooklyn or bust. Not Flushing Mead- deadline for the Dodgers to make a decision regarding its ows. Not Jersey City where the Dodgers had played a next move—Brooklyn, Queens, or another locale. handful of home games at Roosevelt Stadium in 1956 and 1957. The National League extended its Octo- ber 1 deadline. But sensing the Dodgers Keeping the Dodgers in Ebbets Field was were on the verge of slipping away, the an option, but not in O’Malley’s view an Los Angeles City Council gathered to attractive one. Attendance was still over extend a full and fi nal offer. On October 7 one million in 1956, but it was dropping. the council met for six hours. The out- Only a sentimental man—or an heir or come of its deliberations was in doubt. an otherwise wealthy man who did not Before the council was a proposal to make his money by owning a baseball give the 300 acres of Chavez Ravine to club—would have stayed on in the hope O’Malley as well as have the city pay $2 he might yet lure people back. By the million to prepare the hilly terrain for time O’Malley was ready to build a new a stadium and $2.75 million for access stadium at a good location, he could not roads. The city owned 185 of those acres do as Charles Ebbets had done—spend- but was prepared to buy the rest. In re- ing years secretly buying small parcels turn, O’Malley would build his own $10 of land from poor people ready to cash million stadium.115 in. O’Malley needed help and New York was not going to extend it. O’Malley had The Dodgers played at Los Angeles Memorial Coli- not spent all his time and energy and seum from 1958 to 1961 and debuted at Dodger Stadium divested himself of all his holdings but in 1962. The Giants mirrored the Dodgers migratory trek, his baseball team in order to take Robert settled in San Francisco, and helped preserve the historic Moses’ on-the-cheap deal in Flushing Dodgers-Giants rivalry. Meadows. Los Angeles courted him and Los Angeles was light years away from Brooklyn, wooed him and promised him more than though. Dem Bums were no longer the dominant topics New York would consider. Los Angeles of interest on streets, stoops, and subways—Los Angeles was the smart move.114 did not live and breathe the Dodgers. Instead, the Dodg- ers offered exciting, novel, and entertaining background The Dodgers would fi ll a baseball void in Los Angeles for Los Angeles’s cultural landscape in the hills, on the created by the departure of the city’s two Pacifi c Coast beaches, and on the freeways. Prime time television com- League teams after the 1957 season. The Los Angeles prised part of that landscape. It also reinforced America’s Angels of the Pacifi c Coast League moved to Spokane and identifi cation of Los Angeles as the home base of the became the Indians. The Hollywood Stars moved to Salt Dodgers. Lake City under new ownership and became the Bees. O’Malley purchased the Angels before the 1957 season, Once the scourge of Brooklyn for managing the rival thereby giving him free rein to move the team out of the Giants from the middle of the 1948 season through 1955, Los Angeles metropolitan area so the Dodgers could en- Leo Durocher resurfaced in Los Angeles as a coach from joy an unfettered marketplace. 1961 to 1964. During this Dodger tenure, the colorful, brash, and personable Durocher played himself on televi-

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 189 sion programs. He was an unoffi cial ambassador of the Herman’s physical assets have countering liabilities, Dodgers on prime time television. however. In this case the asset is, in and of itself, a liability. Sandy Koufax pitches batting practice for Durocher’s Mr. Novak aired for two seasons on NBC, from 1963 new discovery. The results are promising, yet disastrous. to 1965. This one-hour drama starred James Franciscus When Herman hits a ground ball, his power causes the in the title role as a young, idealistic, high school English ball to go underground for several feet and destroy the teacher in Los Angeles recalling JFK in looks. Durocher infi eld. When he hits a home run, the ball knocks over guest-starred in the episode Boy Under Glass with a story the scoreboard. Durocher exclaims that he doesn’t know line revolving around a talented baseball player in danger whether to sign Herman Munster or send him to Vietnam. of failing English and, consequently, sitting out a crucial game.116 Herman’s dreams of big-league status come down to earth when he learns that the Dodgers will not sign him Durocher’s connection to the Dodgers also provided because of money. Walter O’Malley would have to spend the fulcrum for his guest appearances on The Beverly Hill- $75,000 after each game to repair Dodger Stadium. The billies, The Munsters, The Donna Reed Show, and Mr. Ed. On episode has a nice tag when former Los Angeles Rams The Clampetts and the Dodgers episode of The Beverly Hill- 117 player and then current Rams executive Elroy “Cra- billies, Leo Durocher meets country bumpkin turned oil zylegs” Hirsch discovers a football kicked from several millionaire Jed Clampett and his nephew, Jethro Bodine. blocks away, defi nitely farther than the length of a foot- Milburn Drysdale, President of the Commerce Bank ball fi eld. Upon advice from Hodges, Hirsch forgets about of Beverly Hills and no relation to Dodgers pitching identifying the kicker and signing him to the Rams. ace Don Drysdale, sets up the meeting in the form of a Durocher receives baseball advice straight from the foursome on the golf course—Drysdale, Durocher, Jed, horse’s mouth in the Mister Ed episode Leo Durocher Meets and Jethro. Always looking to ingratiate himself with the Mister Ed.120 After watching the Dodgers lose the fi rst Clampetts, whose fortune he manages, Drysdale unfor- game of a twilight doubleheader against the Giants at tunately cannot join the golf game because of a business Candlestick Park in San Francisco on television, Mister meeting. Mistakes ensue. Jed and Jethro initially believe Ed takes action. A loyal Dodgers fan, Ed calls Candlestick that shooting a game of golf means shooting bullets to kill Park, gets connected to the Dodgers dugout, and tells Du- a wild animal called a “golf.” Durocher confuses Jed and rocher that Moose Skowron is dropping his right shoulder Jethro for caddies because of their simple dress. Frustrat- when he is in the batter’s box. Skowron struck out to end ed at Jethro’s misunderstanding of the game, Durocher the game, but he became the hero of the doubleheader’s tosses his golf ball when Jethro prevents the ball from second game, thanks to Mister Ed’s advice. Durocher going into the hole on a putt. follows up the next day by calling the phone number that Durocher’s opinion changes when Jethro’s amaz- Mister Ed gave him—the phone number of Wilbur Post, ingly keen vision spots a golf ball stuck in the tree. Jethro owner of Mister Ed. Wilbur brings Ed to Dodger Stadium claims he can get knock it out with a rock or something to convey more tips to Durocher à la Cyrano de Bergerac else to throw. Durocher gives him a baseball, Jethro fi res with a twist—Wilbur reads Ed’s lips as Ed speaks silently. it with pinpoint accuracy, and Durocher believes he has a Ed only talks out loud to Wilbur when they are alone in new prospect to join Sandy Koufax, Don Drysdale et al. in the barn. the Dodgers pitching lineup. Willie Davis, John Roseboro, and Moose Skowron Durocher brings Dodgers General Manager Buzzie have speaking parts in the episode. As in Herman the Bavasi to the Clampett mansion to witness Jethro’s pitch- Rookie, Koufax pitches batting practice. Ed holds a bat in ing prowess. There’s a catch to Jethro’s pitching, though. his mouth, swings at a Koufax pitch, and hits an inside- He can only pitch fast, hard, and accurately when he the-park home run culminating with a slide into home puts possum fat on his hands. Accordingly, the dynastic plate. dreams for Durocher’s Dodgers dim because possum fat, Durocher also appeared in The Donna Reed Show epi- undoubtedly, would be a banned substance.118 sode Play Ball, along with Don Drysdale and Willie Mays, In The Munsters episode Herman the Rookie,119 Duro- the star centerfi elder for the Dodgers’s arch-rival San cher fi nds a hitting prospect. While talking with reporter Francisco Giants.121 Drysdale, of course, became the inspi- Charlie Hodges, a baseball hit from a park several blocks ration for Greg Brady to pursue a baseball career in The away knocks Durocher on the head. Eager for a brand- Brady Bunch episode The Dropout. A client of America’s new phenom discovery, Durocher investigates. When favorite architect, Mike Brady, Drysdale shows the Brady he fi nds out that Herman Munster hit the baseball, he boys his secret slider. The eldest Brady boy, Greg, idol- arranges a tryout for Herman. Easily, Herman’s physical izes Drysdale. “He thinks you’re a combination of George strength will propel the Dodgers to the National League Washington, Neil Armstrong, and the guy who invented pennant and a World Series championship. pizza.”122

190 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 Greg, a pitcher on his Pony League baseball team, the Ebbets Field with her trademark cowbell complemented Tigers, has pie in the sky dreams because of some generic by organist Gladys Gooding. but encouraging words from Drysdale. The Brady par- No more Dodger Sym-Phony, a group of amateur ents see the danger of Greg’s obsession with baseball and musicians who led the Brooklyn fans by playing tunes to a corresponding heartbreak around the corner because circumstances. For example, if an umpire made a bad call, a professional baseball career is highly unlikely. They the Sym-Phony played Three Blind Mice. recruit Drysdale to talk about the harsh realities of a baseball career, for example, soaking your arm in ice. Greg No more Happy Felton, the host of Happy Felton’s conveniently ignores the realities, avoids schoolwork, and Knothole Gang. Felton was a former comic actor with roots fantasizes about being a baseball bonus baby. He gets a in vaudeville and radio. His Knothole Gang television severe comeuppance, though, that brings him crashing show on WOR–Channel 9 showcased players giving base- down to Earth during his next game when he gives up 12 ball tips to kids who then competed in skills contests. runs in the fi rst inning.123 No more tradition of losing—the Los Angeles Dodg- Greg met another Dodger player in the episode ers won the World Series in 1959, 1963, and 1965. The The Undergraduate—Wes Parker.124 Greg’s attention in Dodgers reached the World Series again in 1966, but lost math class plummets because of a crush on the attrac- to the Baltimore Orioles in a four-game sweep, 4-0. tive math teacher. When Greg meets the teacher’s fi ancé, Wes Parker, his crush immediately subsides. Starry-eyed All was well in Los Angeles during the Dodgers’ fi rst puppy love gives way to starry-eyed idol worship. Parker decade away from Brooklyn. Sandy Koufax pitched four and Greg strike an agreement—if Greg gets an A in math, no-hit games, including a perfect game on September he will get two tickets to the season opener. 9, 1965. Don Drysdale set a record of consecutive scoreless innings with 58 2/3 in 1968. Orel Hershiser, another The Dodgers’ presence on prime time scripted pro- Dodger, broke the record in 1988 with 59 1/3 consecutive grams fi rmly secured the team’s place as a part of Los scoreless innings. Angeles life, from the San Fernando Valley to the Wilshire district, from the mansions of Beverly Hills to the beaches As Los Angeles embraced its new team, it also of Malibu, and from Pacifi c Coast Highway to the world- embraced Vin Scully. Scully began announcing Dodger famous intersection of Hollywood and Vine. Dodger ap- games on radio in 1950 with Red Barber and Cornelius pearances in the fi ctional universes of television programs Desmond, succeeded the beloved Barber in the mid-1950s explicitly or implicitly set in Los Angeles allowed the as the main voice of the Dodgers, and continued being the Dodgers to transition nicely to southern California. In this team’s voice during the transition to Los Angeles. Scully regard, the Dodgers were like so many non-native Los is still the voice of the Dodgers, a vocal fi xture providing Angelenos who settled in the area, accustomed them- continuity, identifi cation, and familiarity to generations of selves to sunshine 300 days a year, and became steadfast Dodger fans that only recognize Los Angeles as the home Dodgers fans. of the Dodgers. In Brooklyn, meanwhile, a restaurant fl agrantly reminded its patrons that the Dodgers once had Still, the Dodgers lacked the community it enjoyed another home. in Brooklyn’s defi ned neighborhoods because real estate sprawl defi ned Los Angeles, a city intra-connected by freeways rather than streets and subway lines. 8th Inning: The Dodgers Return to Brooklyn… Sort Of They found the freeways puzzling and The Dodgers’ departure for Los Angeles created an their families felt out of place. ‘There was emotional rupture throughout Brooklyn. Indeed, the complete chaos on the ball club,’ recalled unthinkable had happened. The team that was once a pitcher Don Drysdale. More than once, fi xture of Flatbush, a symbol of Brooklyn, and a paragon players wondered why the team ever left of baseball excellence belonged to another metropolis. Brooklyn, and Drysdale—who was born and raised in California—agreed with On April 6, 1993, Judge Constance Baker Motley of those who wished the move had never the United States District Court for the Southern District been made. Scattered in neighborhoods of New York confronted the legal intricacies that empha- all over the Los Angeles area, ‘we lost sized the historical fi ssure originating with O’Malley’s that community closeness,’ he would westward migration. In Major League Baseball Properties, write in his autobiography.125 Inc. and Los Angeles Dodgers, Inc. v. Sed Non Olet Denarius, Ltd. [SNOD],126 the defendant faced six causes of action No more players living among the fans. stemming from using the phrase The Brooklyn Dodger. No more Hilda Chester, a zaftig, enthusiastic, and David Senatore, Kevin Boyle, and Richard Picardi crowd-inspiring Dodger fan who led the throngs at formed SNOD, a corporation. “On March 17, 1988, SNOD

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 191 began doing business as a restaurant under the name ‘The incorporating the term ‘The Brooklyn Brooklyn Dodger Sports Bar and Restaurant.’”127 Sena- Dodger’ as a servicemark [sic] for restau- tore, Boyle, and Picardi then formed BUMS, Inc. BUMS rant and tavern services was fi led with began doing business as a restaurant with the same mon- the United States Patent and Trademark iker—The Brooklyn Dodger Sports Bar & Restaurant—on Offi ce in Washington, D.C.134 February 6, 1989. In November 1990, BUMS stopped its restaurant operations. The owners then formed 9506. On The allusion to the Dodgers went beyond the restau- July 1, 1991, it began operations under the same name— rant’s name—stylized script, the color blue, tail of the The Brooklyn Dodger Sports Bar & Restaurant. The own- name used as an underline, a cartoon character in the ers formed the corporations under the laws of New York. logo modeled after the classic “Brooklyn Bum” character, menu items, for example, Dodger Blue Cheese, Dodger However, at no time during their consid- Pee-Wee pasta.135 eration of the ‘Brooklyn Dodger’ name did the individual defendants have any The team’s use of the “Brooklyn Dodgers” name after reason to believe that ‘The Brooklyn moving to Los Angeles started in 1981, seven years before Dodger’ mark was being used by Los An- the Brooklyn Dodger Sports Bar & Restaurant began geles, and certainly not for restaurant or operating. “While plaintiffs have from time to time made tavern services.128 When considering the use of their former ‘Brooklyn Dodgers’ mark occasion- use of the ‘Brooklyn Dodger’ mark, at no ally and sporadically for historical retrospective[s] such time was there any discussion among the as ‘Old Timer’s Day’ festivities, the documentary proof individual defendants and Brian Boyle establishes that, following its departure from Brooklyn, Los Angeles’ earliest licensing of the ‘Brooklyn Dodgers’ [Kevin Boyle’s brother] about trading on 136 the goodwill of Los Angeles in Brook- mark occurred on April 6, 1981.” On that date, Major lyn.129 Indeed, non-party witness Brian League Baseball Promotion Company, the predecessor Boyle, a lifelong Brooklyn resident, testi- to Major League Baseball Properties, amended a licens- fi ed that, given the acrimonious abandon- ing agreement with a third party. The agreement covered ment of Brooklyn by Los Angeles, the names, symbols, and logos of all major league baseball idea of trading on Los Angeles’ ‘good- clubs, including the Los Angeles Dodgers. The amend- will’ in Brooklyn is almost ‘laughable.’130 ment allowed the use of the Brooklyn Dodgers name, symbol, and logo. Licensing activities encompassed a The court considered the actions of the defendants variety of products, including T-shirts, jackets, drinking prior to forming SNOD. mugs, wristbands.137 “However, none of these uses com- petes with defendants’ use of the mark for restaurant and Nevertheless, acting in good faith, the tavern services.”138 individual defendants, again desirous of avoiding any legal entanglements, com- Licensing continued with the Cooperstown Col- missioned yet a second trademark search, lection, a company specializing in throwback baseball this one for the name ‘Brooklyn Dodger apparel. Major League Baseball Properties began its in October, 1987.131 While defendants relationship with the Cooperstown Collection in approxi- were aware at the time they selected their mately 1986. The Brooklyn Dodgers, of course, are a focal logo that Los Angeles owned federal point for baseball nostalgia and, thus, a natural fi t for the trademark registrations for the word Cooperstown Collection. ‘Dodgers,’ their second trademark search established that no registration of any The court also considered the use of the Dodgers ‘Brooklyn Dodger’ mark had ever been name in a restaurant that dated back to the Brooklyn fi led.132 Dodgers era. With respect to restaurant and tavern Having invested the time, money, and services, the evidence established that effort in founding this restaurant and while the ‘Brooklyn Dodgers’ were play- having exercised all reasonable diligence ing baseball in Brooklyn, there existed, to satisfy themselves that no one was also in Brooklyn, a restaurant and tavern using a ‘Brooklyn Dodger’ trademark which used the name ‘Dodgers Cafe.’139 for restaurant and tavern services, and that no one had fi led a registration for The logo of this establishment was the word ‘Dodgers,’ in script, with the fi gure this trademark for use in any other fi eld, 140 the principals of SNOD sought to protect of a swinging baseball batter. The their interests in their new name.133 Ac- evidence shows that the ‘Dodgers Cafe’ cordingly, on April 28, 1988, an applica- began operating with a State Liquor Au- tion to register a composite design mark thority license in 1942 and continued to

192 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 operate until 1968, long after Los Angeles imaginative mind could consider ‘Brooklyn Dodgers’ as had left Brooklyn. Plaintiffs conceded connotative of a sports club in Brooklyn, as is required of that they took no step whatsoever while suggestive marks. they were playing baseball in Brooklyn, or after they had relocated to Los Ange- “The public undoubtedly identiﬁ ed the mark les, to cause the ‘Dodgers Cafe’ to cease ‘Brooklyn Dodgers’ with the Brooklyn-based baseball team. To that extent, the mark was strong and deserving using the name as its servicemark [sic] for 145 its restaurant.141 protection.”

The plaintiffs sued on the basis of trademark infringe- Similarity Between the Trademarks Used by the ment. Their barrier—proving likelihood of confusion Parties between the Brooklyn Dodger Sports Bar & Restaurant and its trademarks. The court followed the standard The court gauges the extent of similarity between the eight-factor Polaroid test:142 trademarks used by the parties through a basic test—Will the similarity be likely to create confusion in the potential (1) strength of plaintiff’s trademark customers for the claimant’s products or services? The (2) similarity between the trademark used by the court determined that the Brooklyn Dodger Bar & Res- parties taurant uses a similar mark in its name to the Brooklyn Dodgers mark. “The blue color of the mark is similar. The (3) proximity of the products script is similar. That defendants’ mark is singular as opposed to Los Angeles’ plural mark is insignifi cant.”146 (4) likelihood that plaintiffs will ‘bridge the gap’ The court found the cartoon fi gure used in the logo (5) actual confusion to be lacking in signifi cance regarding the similarity test. (6) good faith or intent of the defendant “The addition of a cartoon fi gure to a mark is insuffi cient to prevent a likelihood of confusion.”147 (7) quality of defendants’ services (8) sophistication of services. Proximity of the Products The proximity factor encompasses the competition Strength of the Mark between the products using the marks. “In determining The court looked at the mark’s distinctiveness to mea- competitive proximity a court will compare such fac- sure its strength based on two factors—“(1) the degree tors as advertising orientation, function of the services, to which it is inherently distinctive; and (2) the degree to geographical and cultural audiences, style, price, mar- 148 which it is distinctive in the marketplace.”143 A quadrant keting channels and competitor.” The court analyzed of categories serves as guideposts for judicial determina- the venues of both parties—baseball and restaurants—to tion of a mark’s distinctiveness—generic, descriptive, determine the extent of the proximity. suggestive, and arbitrary/fanciful. Plaintiffs’ primary services involve the A generic mark is generally a common giving of baseball exhibitions, principally description of goods and is ineligible for in Los Angeles, sometimes in New York trademark protection. A descriptive mark State, never in Brooklyn. Defendants, on describes a product’s features, quali- the other hand, provide restaurant and ties or ingredients in ordinary language, tavern services exclusively in Brook- and may be protected only if second- lyn. These services share no common ary meaning is established. A sugges- functions, are not competitive, share no tive mark employs terms which do not salient attributes and are not inherently describe but merely suggest the features comparable. Also there is no commonal- of the product, requiring the purchaser to ity with respect to the parties’ market- use ‘imagination, thought and perception ing functions, advertising orientation, to reach a conclusion as to the nature of geographical audiences, etc. In sum, the the goods….’ Fanciful or arbitrary marks court fi nds that the parties do not use are eligible for protection without proof the same name and are not in the same of secondary meaning and ‘with ease of business; they cater to different markets establishing infringement.’144 3,000 miles apart. The law, as applied to the facts proven at trial, makes clear that The court decided that “Brooklyn Dodgers” falls plaintiffs have failed to establish a likeli- under the suggestive paradigm. “As opposed to consider- hood of confusion based on this factor.149 ing the word ‘Brooklyn’ or the word ‘Dodgers’ alone, the

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 193 Likelihood that Plaintiffs Will “Bridge the Gap” strated by defendants in their having conducted trade- Between the Two Markets mark searches on each of the marks they considered, this “Bridge the gap” refers to the senior user’s potential entire controversy and litigation might have been avoided entrance into the same arena or a related arena enjoyed by if plaintiffs had undertaken the simple task of fi ling an application to register a ‘Brooklyn Dodgers’ trademark as the junior user. The potential bridging cannot, however, 155 be frivolous. “While some allowance is made for the se- notice to potential users.” nior user to preserve future expansion possibilities, there must be some credible evidence of the plaintiff’s present Quality of Defendants’ Services 150 intent to enter defendants’ fi eld.” This factor protects the senior user claiming rights to While the court acknowledged the history of Major the trademark. If products and services are substandard, League Baseball and the Dodgers baseball team dated shoddy, or inferior, consumers will likely blame the senior back more than 100 years, it found no credible evidence user. Thus, the legitimate trademark, if one exists, will regarding the bridging the gap factor. “Since plaintiffs get tarnished. Here, the plaintiffs lost. “Plaintiffs merely have not ‘bridged the gap’ in 100 years, there has been no assert that defendants’ products are inferior. This court proof that they will ‘bridge the gap’ in the future.”151 fi nds no evidence that defendants’ products or services are inferior. Moreover, the trial evidence indicates that the parties’ respective products and services simply do not Actual Confusion compete in any market.”156 The plaintiffs sought injunctive relief in the lawsuit, not monetary damages. Injunctive relief requires a Sophistication of the Likely Purchasers likelihood of confusion regarding the legitimacy of the trademark at issue, not actual confusion. Actual confu- The court took the departure of the Dodgers from sion, though, is a Polaroid factor. “While the plaintiff in an Brooklyn to Los Angeles into account for its evaluation of infringement action need not prove actual confusion, it the sophistication factor. Indeed, it was a decisive issue is proper for the court to infer from the absence of actual to discern the sophistication of the restaurant’s patrons. confusion, particularly after defendants’ operation for In turn, the patrons’ consequent ability, or lack thereof, to a lengthy period of time, that there is no likelihood of understand that the Dodgers organization was not associ- confusion.”152 ated with the restaurant became a turning point for the court in its analysis. The court based its conclusion on the plaintiffs’ surveys. “The court concludes that plaintiffs’ surveys “It is unlikely that Los Angeles’ now infamous depar- are fl awed, that both surveys contain a complete lack of ture from Brooklyn and its attendant negative notoriety controls rendering the data meaningless and having no could be ignored by actual or would-be patrons of defen- evidentiary value. Therefore, the court concludes that dants’ restaurants. Given the entirety of facts, therefore, there is no proof of actual confusion.”153 there is virtually no likelihood of confusion by these sophisticated consumers that plaintiffs have somehow authorized defendants to do business under ‘The Brooklyn Good Faith or Intent of the Defendant Dodger’ name—a name plaintiffs abandoned when they The good faith factor triggers an analysis of the de- became the ‘Los Angeles Dodgers.’”157 fendant’s intent to capitalize, profi t, or otherwise benefi t from the plaintiff’s goodwill, reputation, and fame Final score: Defendants 6, Plaintiffs 2. associated with the trademark. Consequently, the court The court also considered three factors added in the considered the actions in starting the Brooklyn Dodger Court of Appeals case of Centaur Communication v. A/S/M Bar & Restaurant, including their trademark searches for Communications.158 “These so-called Centaur factors are: the phrase “Brooklyn Dodgers” and the corresponding a) the nature of the senior user’s priority; b) its delay in absence of trademark registrations. “The proof at trial asserting its claim and c) the balance of harm and benefi t clearly established that at every turn defendants acted in that would result from granting an injunction against the good faith in electing, adopting, and using their mark. junior user’s use of the mark.”159 They made no effort to use their mark in such a way as to trade upon the reputation of plaintiff Los Angeles, but The plaintiffs struck out with the Centaur factors. rather to elicit memories of the ‘Brooklyn Dodgers,’ a The court then considered the issue of abandonment 154 historical concept.” of the Brooklyn Dodgers trademark and the later resump- In a footnote, the court enhanced its viewpoint con- tion of use. “Plaintiffs have in no way demonstrated cerning the lack of trademark registrations for the phrase their intent to resume commercial use of the ‘Brooklyn “Brooklyn Dodgers,” along with a cautionary note for Dodgers’ mark within two years after Los Angeles left trademark owners, claimants, and attorneys. “This court Brooklyn in 1958 or at anytime within the ensuing quarter 160 fi nds it inescapable that, given the good faith demon- century.”

194 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 The court applied the timeline and corresponding ac- toward older Brooklyn Dodgers fans tions of the plaintiffs in its abandonment analysis. in the Brooklyn community in the city of New York. The court also declines to “Plaintiffs changed their name from ‘Brooklyn Dodg- cancel any registration of the ‘Brooklyn ers’ to ‘Los Angeles Dodgers’ immediately after arriving Dodgers’ mark by plaintiffs for use of in Los Angeles. They registered their new name ‘Los that name for the sale of goods such as Angeles Dodgers’ in 1958. They did not register simply as T-shirts, caps, memorabilia, etc.164 the ‘Dodgers’ which plaintiffs claim is their true trademark until 1967. Here, plaintiffs neither registered the ‘Brooklyn Dodgers’ [emphasis original] mark prior to their 9th Inning: Will Brooklyn’s Broken Heart Ever resumed use of the mark in 1981 nor did they produce Heal? any other evidence indicating that they had plans to On June 25, 2001, baseball returned to Brooklyn— resume use of the ‘Brooklyn Dodgers’ mark when they the Brooklyn Cyclones and the St. Catherines Stomp- 161 intentionally abandoned it and Brooklyn in 1958.” ers opened a new era of Brooklyn baseball in KeySpan Additionally, the court found a disparity between the Park. Named after the legendary Cyclone rollercoaster plaintiffs’ and defendants’ respective uses of the Brooklyn in Coney Island, the Cyclones of the Class A New York– Dodgers trademark. “The court concludes that plaintiffs’ Penn League play their home games right next to Coney interest, which is a new phase in the history of this mark, Island’s Astroland amusement park. is only in the ﬁ elds in which the mark has been used since In the team’s inaugural season, the venerable cry of plaintiffs chose to resume its use. The evidence makes “Wait ‘Til Next Year” that reverberated loudly through clear that the uses to which the plaintiffs put their marks Brooklyn during the halcyon days of Yankee dominance were generally sportswear and novelty items which are in the 1950s, might have emphatically fell silent but for in no way related to defendants’ restaurant and tavern an infamous day in history. The New York–Penn League services in the limited geographic area of New York City cancelled the 2001 championship series between the Cy- 162 known as Brooklyn.” clones and the Williamsport Crosscutters because of the The geographic gap between the plaintiffs and the terrorist attacks on September 11, 2001. The Cyclones led defendants presented another barrier for the plaintiffs. the series 1-0. In turn, the league declared both teams to “Plaintiffs have not in any way demonstrated that the res- be co-champions. Whether the Cyclones would have won taurant business in Brooklyn is a market into which they the series is an issue for armchair analysts, managers, and might naturally expand.”163 historians. Simply, the disparities provided the foundation for Originally, KeySpan Utilities enjoyed the nam- the court’s conclusion that trademark rights claimed by ing rights for the ballpark. The KeySpan Park deal ran the plaintiffs enjoyed restrictive protection. through 2020. National Grid bought KeySpan in 2007 and, in turn, eliminated the KeySpan name in its new corpo- This court holds that plaintiffs’ failure to rate paradigm. Apparently, National Grid did not want utilize the ‘Brooklyn Dodgers’ mark for to pick up the naming rights, so Municipal Credit Union any signiﬁ cant, commercial trademark (MCU) bought the naming rights for the remainder term use between 1958 and 1981 constituted an of the KeySpan deal from 2010 to 2020.165 abandonment of that mark and dramati- cally limits the protection to which that The Cyclones restored the presence of baseball in the mark is entitled since its resumption. borough, but the shattering of Brooklyn’s devotion to the Although there was evidence of a very Dodgers remains an open wound. The ghosts of Ebbets limited number of food services and food Field govern the hearts, minds, and souls of Brooklyn items (Dodger Dogs, etc.) in plaintiffs’ Dodger fans who never quite understood, forgave, or stadium in Los Angeles and training appreciated Walter O’Malley’s cross-country exodus. camp in Florida, no evidence was intro- Granted, the transfer of National League power from duced by plaintiffs on this critical issue to Ebbets Field to Chavez Ravine shocked Brooklyn. Simply, prove that this mark, ‘Brooklyn Dodgers,’ a common bond among Brooklynites faded into oblivion has been used by plaintiffs or licensed when O’Malley moved the team to Los Angeles. by plaintiffs for a restaurant such as the In his 2007 New York magazine article Exorcising the singularly nostalgic restaurant defen- Dodgers, Sam Anderson uses the 50th anniversary of the dants operate in Brooklyn. Accordingly, last Brooklyn Dodgers team in 1957 as a springboard the court declines to enjoin defendants’ to study the impact of the Dodgers’ leaving. Anderson very limited use of the ‘Brooklyn Dodger’ cites Michael Shapiro, the author of The Last Good Season. mark by defendants for use in connec- Shapiro’s book probes beneath the surface to uncover the tion with its local restaurants directed

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 195 reasons for the Brooklyn Dodgers leaving the borough and there were untapped markets. To that embraced, treasured, and idolized them. his credit, Walter O’Malley seized the opportunity.167 He intended to write a book that would dispel the great distorting myth of his six- Nevertheless, the Brooklyn Dodgers resonate today. ties Brooklyn childhood: that life would Other teams long since gone from their origin cities do have been better if the Dodgers hadn’t not enjoy this loyalty enhanced by books, documentaries, left. Instead, his research kept confi rming and articles. Roger Kahn’s book The Boys of Summer—part it. Although his book pokes a few holes memoir, part “Where Are They Now?”—enjoys distinc- in the traditional version of the Dodger tion as the fi rst signifi cant literary work to cover the story—Moses, not O’Malley, is the mystique of Ebbets Field, the magic of being a Brooklyn primary villain—he leaves it generally Dodgers fan, and the collective character of the ghosts of intact. ‘There was something there,’ he Flatbush. It is still in print today, nearly 40 years after its told me. ‘It was real.’ But he’s no Polly- initial publication.168 anna. The Dodgers, he told me, were not mystic vessels sent from God to adminis- Kahn governs a unique vantage point as chronicler, ter virtue and nobility to earthlings. Their fan, and continual protector of the Brooklyn Dodgers’ power was simpler, and more profound. legacy. ‘When the Dodgers left, it didn’t rip the Brooklyn was not a city, but a borough. heart out of the borough’ he says. ‘That’s It was a bedroom community. As kids, too much. I think people said that be- we played a lot of baseball. And we all cause they couldn’t quite put into words had a secret hope of making the Dodgers. the sense of what was lost. The departure During those years, we had practice after of the Dodgers denied Brooklyn, for half school. We would go to Ebbets Field in the year, this common conversation—the the 1930s to watch the games. Even then, idle chitchat you have with people on we used to hear the Brooklyn jokes. We the subway or waiting for the elevator or had a major league team even though we going to the butcher. Baseball informed lived in a borough. Those were years in so much of that. ‘Can you believe that the baseball wilderness. Furillo last night? Snider’s a bum! Is My father had been quietly rooting for Hodges gonna get a hit?’ It created a the Dodgers since he was born in 1901. relationship between strangers—you felt They won pennants in 1916 and 1920 but close to them, if only for a minute or two. lost the World Series to the Boston Red What was lost was each other.’166 Sox and the Cleveland Indians, respectively. There was a certain ineptitude Passion for the Brooklyn Dodgers of Jackie Robin- combined with a comic incompetency son, Carl Furillo, Roy Campanella, Pee Wee Reese, Gil in some of the Dodger games. After the Hodges, et al. continues despite the loss of a team—a loss wretched years came a rebirth with Larry that, decades later, haunts fans who rooted with resolute MacPhail bringing in new players, for ex- fervor. George Will, the political commentator who once ample, Pee Wee Reese. In 1942, they lost said that he works in the political arena so he can fund his the pennant to a powerful Cardinals team baseball hobby, further diagnoses the cause of the emo- that eventually defeated the Yankees in tional wounds as sourced in identity. the World Series. Pete Reiser crashed Brooklyn was the third largest city in the full-speed into an outfi eld wall that year. United States until 1898 when New York It affected his ability, vision, and energy City annexed it. So, there is an inherent greatly. If Reiser had not gotten injured, inferiority complex and I think Brook- the story might have ended differently. lynites felt particularly slighted when the The Robinson-Reese-Snider team saw Dodgers left. Also, the Brooklyn Dodgers attendance decline. This decline was didn’t win a championship until 1955. largely because of television. Suddenly In 1958, they were gone. The borough’s in the early 1950s, you could sit at home fragile sense of identity was tied up with on a cloudy night and watch the Dodg- the Dodgers. ers on Channel 9. The intensity of interest A strong, obvious, economic rationality transferred to living rooms. In the 1950s, led to the end of the Brooklyn Dodg- the sport did not televise well. There ers. Fans weren’t coming to the ballpark were only two or three cameras. Boxing

196 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 was visually the best sport for televi- demolished in 1922. The Brooklyn Tip-Tops played at sion. Football was good. Branch Rickey Washington Park during its brief tenure in the Federal was troubled by the impact of television League from 1914-1915. A Con Edison truck depot sits on on baseball. He wanted a screen in the the park’s former location.171 shape of a pyramid to show the baseball Whether the wall’s existence coincided with the diamond. Today, the sport televises pretty Dodgers’s tenure at Washington Park remains to be seen. well. There is still controversy over when the Plus, Ebbets Field was an intimate place wall went up at the ballpark and if it has where I could pick a friend of mine out any link to the Dodgers—who would of the stands. There was physical prox- later leave Brooklyn for Los Angeles fol- imity between the players and the fans. lowing the 1957 season. The players lived mostly in Bay Ridge. There was a likelihood that you went Recently released photos appear to to the same supermarket as a Dodger back historians who have said the wall player or took your kids to the same was a later addition to the park for the pediatrician.169 Tip-Tops’ inaugural season in 1914, but other historians claim it dates back to the Sol Gabay, a Brooklynite who has lived in northern Dodgers’ fi nal years there. New Jersey for more than 40 years, remembers with clarity his fi rst experience at Ebbets Field, the void created by The Landmarks Preservation Commis- the Dodgers’s departure for Los Angeles, and the endur- sion opted against granting the park ing passion for the team. landmark status in part because it concluded the wall was built shortly after the My cousin took me to my fi rst baseball Dodgers moved to Ebbets Field.172 game. We had box seats at Ebbets Field for a Dodgers vs. Pirates game. Each Con Ed yielded to historical signifi cance, despite the ticket cost $1.65. Ed Head pitched for the lack of landmark status and the question of the wall as a Dodgers. The Dodgers won the game reminder of the Brooklyn Dodgers from nearly 100 years by a score of 4-0. When the Dodgers left ago. “Although the city Landmarks Preservation Com- Brooklyn, I stopped looking at baseball mission in March shot down a proposal to give the wall games. It was a sad feeling when they landmark protection, Con Edison opted against razing it left. The team was a part of life in Brook- as part of a renovation plan. This was after independently lyn. We left the house at 8:00 am to go confi rming the structure had historical signifi cance.”173 to Ebbets Field and be the fi rst people through the gate. They usually opened The decision to protect the stone wall refl ects an the gate at 11:00 am. The biggest thrill appreciation for the rich history of baseball in Brooklyn. was going to a doubleheader. When the At the center of that history lays the Brooklyn Dodgers, Mets won the World Series in 1969, I took a team immortalized by heartbreak because of migra- up baseball again. Some Dodgers fans tion to Los Angeles. Indeed, the psychic injury caused by became Mets fans right away when the the team’s move still manifests in the hearts of fans who Mets debuted in 1962. But the Brooklyn treated Ebbets Field as a second home. Dodgers and Ebbets Field never leave Tangible reminders may not fully assuage the injury’s you. They’ve never really gone away. pain, but they do show honor, respect, and loyalty. For You still have it in your bones. If you example, when the New York Mets debuted in 1962, the weren’t there, you couldn’t understand players boasted a combination of colors sourced from the the feeling of being a fan of the Brooklyn team’s National League predecessors—Dodger Blue and 170 Dodgers. Giant Orange. Today, a tangible piece of Brooklyn baseball history Fred Wilpon, owner of the New York Mets, endorses falls under the auspices of protection, though not without the Brooklyn Dodgers in the baseball pantheon through question, debate, or controversy concerning its specifi c the design of the new stadium for the Mets—Citi Field. Its connection to the Dodgers. external design is a visceral, emblematic, unquestionable Con Edison will preserve a stone wall that was a homage to Ebbets Field. Wilpon’s inspiration is deeply perimeter wall in Washington Park, the home fi eld for the personal. Brooklyn team from 1898 until 1912. The “20-foot high I’m a kid who grew up in Brooklyn. I stonewall on Third Avenue near First Street in Gowanus” was steeped in being a very avid Dodger is a small piece of the ballpark that was almost completely fan. I have great memories of going to a

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 197 dozen or more ball games with my dad. trying to keep the unique heritage of the That was joyous. I remember being ten Dodgers alive through the stadium’s years old and my dad holding my hand architecture and the rotunda. Rooting as we walked into Ebbets Field after we for the Brooklyn Dodgers was part of the got hot dogs on Sullivan Street. process for fi rst-generation and second- generation Americans in the fi rst half of As a sandlot player, I followed the Dodg- the 20th century. Some of this feeling is ers. Everyone I knew was a Dodger fan engendered today. Baseball is a blend- or a Yankee fan. The era of the 1930s ing of business and public trust. The and 1940s was a time of cultural change. Brooklyn Dodgers became so important My family came from Europe, settled in to a borough with a population of close America, and wanted education. Baseball to three million people. The team was a became a passionate focus for that era. raison d’être for Brooklyn.174 We were passionate about this lovable team that was bumbling. And then, they Decades after the 1950s heyday of the Brooklyn evolved into a very good team. Dodgers, the team’s enduring magic is largely indefi n- able, inscrutable, and invincible. It is palpable, how- In 1947, Mr. Rickey committed a heroic ever. For those denizens that rooted for Jackie, Pee Wee, act in breaking the color line with Jackie Campy, Newk, et al., Ebbets Field represented the focal Robinson. He chose the right person and point of Brooklyn’s melting pot, the constituents of which the right players. Jackie Robinson is not communicated through the common language of balls, just a Hall of Fame baseball player. He strikes, and batting averages. The bond between fans and is an American icon who is probably as team once thought to be a sacred trust actually shattered important to the civil rights movement as upon the Dodgers’ relocation to Los Angeles. Dr. King. In Major League Baseball Properties, Inc. v. Sed Non Olet This was a team that people sort of Denarius, Ltd., Judge Motley codifi ed the resonant senti- wrapped their arms around. Ebbets Field ment regarding this sacred trust that echoes, pulses, and was small. You felt close to the event. The vibrates throughout time. Roger Kahn reinforces the judi- players lived in Bay Ridge and Flatbush. cial mandate with authoritative emotion—“The Brooklyn Brooklyn people are very passionate and Dodgers belong to Brooklyn, not Los Angeles.”175 they’re passionate about their teams.

I also have a familial connection to the Endnotes Dodgers. My wife and I married in 1958. 1. 817 F.Supp. 1103 (S.D.N.Y. 1993). After graduating from the University of 2. FIELD OF DREAMS (Universal Pictures 1989). In Shoeless Joe, the Michigan, she got her fi rst job in New writer is J.D. Salinger. York City. She worked for the Continental 3. GEOFFREY C. WARD, BASEBALL: AN ILLUSTRATED HISTORY 3-4 (Based League, so she’s been associated with the on a Documentary Filmscript by Geoffrey C. Ward and Ken Burns) New York Mets longer than anyone. (Alfred A. Knopf 1994). Because I was part of the emotion of the 4. Id. at 3. Brooklyn Dodgers, I thought that we 5. David Brock, Baseball’s Earliest Rules, SOC’Y FOR AMERICAN BASEBALL RESEARCH, available at http://www.sabr.org/sabr. could possibly keep that feeling alive cfm?a=cms,c,1017,34,0. with the new stadium’s design. I have 6. Id. fond memories of the Brooklyn Dodgers in the Jackie Robinson era. If you couple 7. WARD, supra note 3, at 5. “Sometime during the spring or summer of 1842, a group of young gentlemen began getting together in that with my feeling of Jackie Robinson’s Manhattan each weekend to play one or another version of the importance irrespective of his status as game, depending on how many showed up at game time. They a Dodger, Citi Field’s Jackie Robinson played fi rst on a vacant lot at the corner of Madison Avenue and Rotunda honors him properly. He is an Twenty-seventh Street, then in a slightly more spacious clearing at the foot of Murray Hill. American icon who defi ned integrity. On September 23, 1845, apparently at the instigation I know Mrs. Robinson very well since my of a tall, twenty-fi ve-year-old shipping clerk named Alexander Joy Cartwright, twenty-eight of these teenage years. I also knew Jackie Robin- young men formally established themselves as the son. I deeply felt that this man’s contribu- New York Knickerbocker Base Ball Club, named tion to baseball and society demanded after a volunteer fi re company to which Cartwright more than a plaque or statue. We received and several other players belonged. They were convivial and prosperous: merchants, Wall Street some objections that the rotunda was brokers, insurance salesmen, a United States mar- too focused on the Dodgers. But we’re shal, a portrait photographer, a physician, a dealer

198 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 in cigars—”men,” one of them remembered, “who AN ORAL HISTORY OF THE BROOKLYN DODGERS 2 (Dover Publications, were at liberty after 3 o’clock in the afternoon.” Id. Inc. 2010) (1984). at 4. 34. MCGEE, supra note 17, at 39. 8. Edward Wong, Baseball’s Disputed Origin Is Traced Back, Back, 35. Id. at 38-39. Back, N.Y. TIMES, July 8, 2001, available at http://www.nytimes. 36. Id. at 40. Ebbets was a Democrat. He won the 1895 election for the com/2001/07/08/sports/08PAST.html. 12th Assembly District in the State Assembly. The district included 9. Id. the Park Slope section of Brooklyn. He won a four-year term in 10. Id. the 1897 election for City Council. Id. at 32. “Ebbets’s deliberations with other politicos gave him information quite useful for the 11. STANLEY COHEN, DODGERS: THE FIRST 100 YEARS 2 (Carol Publishing day when he would seek a parcel of land for his new ballpark: Group 1990). discussions through the turn of the century were wide-ranging 12. Id. at 4. “On March 17, 1871, representatives of ten teams met in about the upcoming plans for a subway system, and where and Collier’s Cafe, on Broadway and 13th Street in New York City, how that subway system and the neighborhoods alongside it and organized the National Association of Professional Baseball would grow.” Id. at 32. Players.” Id. 37. Id. at 38.

13. Id. 38. COHEN, supra note 11, at 14-15. 14. Id. When he checked the deeds to see who owned the 15. Id. land, Ebbets discovered forty claims of ownership, either by deed or squatters rights. He formed a 16. Id. at 4-5. corporation and, disguising his true purpose, bought 17. BOB MCGEE, THE GREATEST BALLPARK EVER: EBBETS FIELD AND THE the fi rst parcel in 1908. Midway through the three STORY OF THE BROOKLYN DODGERS 28 (Rutgers U. Press 2005). “Half years it took him to secure the other parcels, word the Brooklyn players got married during 1887 and during the leaked out as to his objective, and several of the plot course of the following winter, and for the next two years, the fans owners hiked their prices sharply. By the end of 1911, called the team the Bridegrooms, or simply the Grooms.” Id. he had been able to acquire the entire area except for 18. The National League formed in 1876. one parcel—he had been unable to locate the owner. Private dicks traced the man fi rst to California, then 19. COHEN, supra note 11, at 6. to Berlin, then to Paris. Ultimately he was found—in 20. MCGEE, supra note 17, at 29. “The pace of Brooklyn life had been Montclair, New Jersey. changing for some time. Although the trolleys that sped down Ebbets sent a purchasing agent to ask how much the the borough’s roads provided key linkages to jobs and commerce owner wanted. The agent had no way of knowing that helped promote economic growth, they also were killing an whether the man had learned of the true purpose average of one pedestrian a week.” Id. at 31. of the purchase, but when he told the owner that he 21. COHEN, supra note 11, at 7-8. was interested in the land, the owner laughed. He 22. See http://losangeles.dodgers.mlb.com/la/history/timeline.jsp. had forgotten that he had owned it. “Why would John Montgomery Ward and Dave Foutz managed the Brooklyn anyone be interested in land in Pigtown?” he asked, team from 1891-92 and 1893-96 respectively. Ned Hanlon managed adding, “Would $500 be all right?” from 1899-1905. The “Superbas” name paid homage to a “popular Ebbets now had the land, and even though he was Broadway troupe of the same name.” Id. “For the next two years, up to his handlebar mustache in debt, his bank in 1899 and 1900, the new players that Hanlon managed brought lent him enough money to begin construction. The Brooklyn to the top of the baseball world. Someone in the press squatters were driven out, the shanties torn down, box nicknamed the ‘Superbas,’ after a popular vaudeville act the garbage pit fi lled, and the area leveled, and on known as Hanlon’s Superbas. The name caught on quickly and March 4, 1912 [sic] Ebbets, wearing a black bowley would persist with the fans long after Hanlon was gone.” MCGEE, and an elegant overcoat, stomped a shovel into the supra note 17, at 36. ground to begin excavation. GOLENBOCK, supra note 23. Id. at 29. 33, at 2-3.

24. Id. at 30. 39. Id. at 3.

25. Id. “Even though McGunnigle had just brought home two 40. COHEN, supra note 11, at 15. consecutive championships, Doyle and his crew shamelessly went along with the summary dismissal of their man. As sportswriter 41. GOLENBOCK, supra note 33, at 3-4. Ebbets died on April 18, 1925. Frank Graham later said, this action probably minted the adage His burial took place on a “raw, windy day.” COHEN, supra note ‘There is no sentiment in baseball.’” Id. 11, at 34. The weather fatally affected Ed McKeever, Ebbets’s replacement as acting president. “[He] shuddered in the cold and 26. Id. complained of a chill. Within a week, he was dead of pneumonia.” 27. COHEN, supra note 11, at 8. Id. at 36.

28. MCGEE, supra note 17, at 33. 42. Id. In addition to the Dodgers, Brooklynites enjoyed professional baseball played by the Tip-Tops in the Federal League. The 29. Id. at 34. league’s tenure was 1914-15. Robert Ward owned the team and 30. Id. at 35. named it after his bakery—Tip Top Bakery.

31. Id. at 36-37. The Highlanders became the Yankees in 1913. 43. GOLENBOCK, supra note 33, at 6-7.

32. Id. 44. COHEN, supra note 11, at 33. 33. COHEN, supra note 11, at 14. “It was a wild, craggy piece of land, 45. Id. at 48, 50. The precarious ﬁ nancial situation made foreclosure a with shanties scattered over it, and in the middle of this nest of distinct possibility. Future Dodger icon Branch Rickey apparently poverty was a large, gaping pit into which the shanty dwellers played a role in Frick’s decision. “Desperate in the face of threw their fetid, steaming garbage. Farmers from the area brought foreclosure by the bank, the quarreling heirs of original owners their pigs there to feed. Hence Pigtown. PETER GOLENBOCK, BUMS: Charley Ebbets and Steve McKeever, who heretofore had been

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 199 unable to agree on anything, went to National League President 65. TYGIEL, supra note 48, at 35. Ford Frick to get his opinion as to what they should do to keep 66. LANCTOT, supra note 64, at 108. from going under. Frick advised that they hire a strong general manager with baseball experience, one who would not be ﬂ eeced 67. Id. at 207-08. by other teams and who could make the Dodgers respectable. 68. Id. at 239. When they asked Frick to suggest someone, Frick, in turn, sought the counsel of Branch Rickey, the most successful ﬂ eecer in the 69. SCOTT SIMON, JACKIE ROBINSON AND THE INTEGRATION OF BASEBALL National League, the brains behind the always powerful St. Louis 45-46 (John Wiley & Sons, Inc. 2002). Cardinals. The Dodgers were desperate. A name, Branch, a name. 70. Robert W. Creamer, Jackie Is ‘the First’ Again, CNN/SI, available Rickey proposed a longtime friend and business associate, Leland at http://sportsillustrated.cnn.com/vault/article/magazine/ Stanford MacPhail.” GOLENBOCK, supra note 33, at 11. MAG1125037/index.htm.

46. COHEN, supra note 11, at 61. The Dodgers lost the 1942 National 71. TYGIEL, supra note 48, at 58. League Pennant to the Cardinals, despite a seven and a half game 72. COHEN, supra note 11, at 79. lead with fi ve weeks remaining in the season. MacPhail signed journeyman pitcher Bobo Newsom, a 20-year veteran to shore up 73. LOWENFISH, supra note 57, at 365-66. the lineup. Golenbock theorizes that the signing of Newsom and 74. Id. at 371. other fi nancial pressures infl uenced the pressure on MacPhail to resign. 75. Id. at 371-72. [The Dodgers stockholders] had forbade him from 76. Id. at 374. spending the cash to acquire Newsom, MacPhail’s 77. Id. at 375. In Jackie Robinson’s autobiography I Never Had It Made, ‘pennant insurance,’ and Newsom’s 2-2 record did Robinson recounts the scene similarly, but with an exchange not help the Dodgers to a pennant as promised. This between himself and Rickey. “Mr. Rickey, are you looking for was one of the excuses they lamely cited for getting a Negro who is afraid to fi ght back.” “Robinson, I’m looking rid of the man who saved the franchise. In truth the for a ballplayer with guts enough not to fi ght back.” JACKIE Age of the Bottom Line was slowly eating away at ROBINSON (AS TOLD TO ALFRED DUCKETT), I NEVER HAD IT MADE: AN the business of baseball. Stockholders were the ones AUTOBIOGRAPHY 33 (Harper Collins 1995) (1972). calling the shots, and the bottom line in Brooklyn was that, because of MacPhail’s extravagant spend- 78. EIG, supra note 61, at 30. ing, they were not getting big enough dividend 79. Id. checks. Winning was no longer enough. Now they 80. ARNOLD RAMPERSAD, JACKIE ROBINSON: A BIOGRAPHY 92-93 wanted someone who would lead them to victory (Ballantine Books 1998 (1st ed.1997)). as well as to a fat check at the end of the year. Id. at 61-62. 81. Id. at 101. 82. Id. at 102. 47. Id. at 62. 83. Id. 48. JULES TYGIEL, BASEBALL’S GREAT EXPERIMENT: JACKIE ROBINSON AND HIS LEGACY 50 (Oxford U. Press 1983). 84. Id. at 105.

49. COHEN, supra note 11, at 97. Jack faced two charges. The fi rst, a violation of Article of War No. 63, accused him of “behav- 50. See supra note 22. ing with disrespect toward Capt. Gerald M. Bear, 51. Id. CMP [Commander of Military Police], his superior 52. Id. offi cer.” Robinson had incurred the charge by con- temptuously bowing to him and giving him several 53. J. ROY STOCKTON, THE GASHOUSE GANG AND A COUPLE OF OTHER GUYS sloppy salutes, repeating several times “OK Sir,” 20 (6th Printing, A.S. Barnes & Company, Nov. 1947) (1945). “OK, Sir,” or words to that effect, and by acting in 54. Id. an insolent, impertinent and rude manner toward the said Captain Gerald M. Bear.” The second charge 55. Id. was a violation of Article No. 64, in this case “willful 56. Id. disobedience of lawful command of Gerald M. Bear, CMP, his superior.” It alleged that Robinson, “having 57. LEE LOWENFISH, BRANCH RICKEY: BASEBALL’S FEROCIOUS GENTLEMAN received a lawful command…to remain in a receiv- 121 (U. of Neb. Press 2007) citing FREDERICK G. LIEB, THE ST. LOUIS ing room and be seated on a chair on the farside [sic] CARDINALS; THE STORY OF A GREAT BASEBALL CLUB 78 (Reprint ed., Carbondale: S. Ill. U. Press 2002) (1944). Rickey managed the St. of the receiving room, did…willfully disobey the Louis Cardinals from 1919-1925. same. Id. at 106. 58. Id. at 122. 85. Id. at 111. 59. See http://www.nlbpa.com/fowler__john_w__-_bud.html. 86. Id. at 113. 60. The American Association lasted from 1882 to 1891. Its rival league 87. Id. was the National League, which started in 1876. 88. Id. at 164. 61. JONATHAN EIG, OPENING DAY: THE STORY OF JACKIE ROBINSON’S FIRST 89. Id. at 163-64. SEASON 29 (Simon & Schuster Paperbacks (First Simon & Schuster trade paperback edition) Apr. 2008 (2007)). 90. TYGIEL, supra note 48, at 170, citing HAROLD PARROTT, THE LORDS OF BASEBALL: A WRY LOOK AT A SIDE OF THE GAME THE FAN SELDOM 62. See http://www.negroleaguebaseball.com/faq/record0002.html. SEES—THE FRONT OFFICE 208 (Praeger Publishers 1976) and LEO 63. Id. Foster’s Negro National League ended after the 1931 baseball DUROCHER WITH ED LINN, NICE GUYS FINISH LAST 177-79 (Simon & season because of economic pressures caused by the Great Schuster 1975). The commissioner’s offi ce suspended Durocher for Depression. Id. the 1947 season because of his association with known gamblers.

64. NEIL LANCTOT, NEGRO LEAGUE BASEBALL: THE RISE AND RUIN OF A 91. Id. at 182-83. LACK NSTITUTION B I 108 (U. of Pa. Press 2004). 92. ROBINSON, supra note 77, at 60..

200 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 93. TYGIEL, supra note 48, at 183, quoting CARL ROWAN AND JACKIE 118. Wally Cassell plays Buzzie Bavasi. Bavasi worked for the Dodgers ROBINSON, WAIT TILL NEXT YEAR 181-84 (Random House 1960). from 1945 to 1968. He was the team’s General Manager from 1951 to 1968. He resigned in 1968 to become the president and a 94. ROBINSON, supra note 77, at 62. part-owner of the San Diego Padres, a National League expansion 95. ROGER KAHN, THE ERA 57 (First Bison Books 2002) (1993). team that debuted in 1968. Bavasi moved to the California Angels 96. Id. at 58. as Executive Vice President and General Manager after the 1977 season. He retired in 1984. The Dodgers did not need Jethro’s 97. Id at 59. pitching for the 1963 season. The team won the World Series 98. Id. at 59-62. against the arch-rival New York Yankees in four games—4-0.

99. ROGER KAHN, THE BOYS OF SUMMER xvii (Harper Perennial Modern 119. The Munsters: Herman the Rookie (CBS television broadcast Apr. 8, Classics 2006) (1971). “The Boys of Summer was published in March 1965). The Dodgers did not need Herman’s hitting for the 1965 1972, though magazine excerpts appeared in 1971.” Interview with season. The Dodgers beat the Twins in the World Series. It went Roger Kahn (Dec. 28, 2010). the full seven games—4-3. Gene Darfl er plays the fi ctional reporter Charlie Hodges. 100. Id. at xviii. 120. Mister Ed: Leo Durocher Meets Mister Ed (CBS television broadcast 101. Id. at xix. Sept. 29, 1963). 102. See http://www.baseball-reference.com/bullpen/Brooklyn_ 121. The Donna Reed Show: Play Ball (ABC television broadcast Oct. 1, Dodgers#.E2.80.9CDem_Bums.E2.80.9D 1964). Willie Mays appeared on two other Donna Reed episodes— By the late 1930s, the Dodgers had earned the The Donna Reed Show: My Son, the Catcher (ABC television reputation of loveable losers. One day in 1939, sports broadcast Apr. 16, 1964) and The Donna Reed Show: Calling Willie cartoonist Willard Mullin of the New York World Mays (ABC television broadcast Jan. 29, 1966). Drysdale also Telegram asked a cab driver how the Dodgers were appeared with Mays in My Son, the Catcher. Mays also appeared on doing. The cabbie replied, “Dem Bums are bums.” an episode of Bewitched as himself—Bewitched: Twitch or Treat (ABC The encounter gave Mullin an idea, and he soon television broadcast Oct. 27, 1966). developed a cartoon character, the “Brooklyn Bum,” 122. The Brady Bunch: The Dropout (ABC television broadcast Sept. 25, to symbolize the team. Fans and newspapers alike, 1970). mimmicking [sic] a Brooklyn accent, often referred to the team as “Dem Bums.” Even circus clown Emmett 123. Id. Kelly, who had created the hobo character, “Weeping 124. The Brady Bunch: The Undergraduate (ABC television broadcast Jan. Willie,” for the Ringling Bros. and Barnum & Bailey 23, 1970). Circus, got into the act, often appearing at Ebbets Field as the Dodgers unoffi cial mascot. 125. MICHAEL D’ANTONIO, FOREVER BLUE: THE TRUE STORY OF WALTER O’MALLEY, BASEBALL’S MOST CONTROVERSIAL OWNER, AND THE 103. MUSEUM OF THE CITY OF NEW YORK, THE GLORY DAYS: NEW YORK DODGERS OF BROOKLYN AND LOS ANGELES 290 (Riverhead Books BASEBALL 1947-1957 158 (John Thorn ed., HarperCollins Publishers 2009) (First Riverhead Books Trade Paperback ed. 2010). 2007). 126. 817 F. Supp. 1103 (S.D.N.Y. 1993). 104. Telephone Interview with Joel Hecker (Oct. 21, 2010). 127. Id. at 1111 (citing Transcript of Record at 480). 105. Interview with Harold Friedman (Oct. 25, 2010). 128. Id. at 1112 (citing Transcript of Record at 526-27). 106. Jackie = Jackie Robinson. Campy = Roy Campanella. Newk = Don 129. Id. (citing Transcript of Record at 528). Newcombe. Oisk = Carl Erskine. 130. Id. (citing Transcript of Record at 529). 107. Sam Anderson, Exorcising the Dodgers, NEW YORK, Sept. 24, 2007 at 36. 131. Id. (citing Transcript of Record at 489, 609-11, 621-22, 744, and Plaintiff’s Exhibit 28). 108. LOWENFISH, supra note 57, at 488-489. 132. Id. (citing Transcript of Record at 492, 532, 562, 659, 735-36, and 109. Id. at 489. Plaintiff’s Exhibit 28). 110. Id. at 490. 133. Id. (citing Transcript of Record at 571). 111. Id. at 491-492, citing FRANK GRAHAM, JR., A FAREWELL TO HEROES 134. Id. (citing Transcript of Record at 571, 630, 637, 728, and Plaintiff’s 234 (Viking 1981). Exhibit 37). 112. LANCTOT, supra note 64, at 386. “The exact date of the NAL’s 135. Id. at 1113 (citing Plaintiff’s Exhibits 14, 31, 53 at 87, 54 at 94, and collapse is uncertain, although I was unable to locate any mentions Transcript of Record at 311, 385, 482, and 654). of the league after an October 1963 article in Jet. Despite the collapse of the NAL, individual black teams, most notably the 136. Id. at 1115 (citing Plaintiff’s Exhibit 19). [Indianapolis] Clowns, continued to operate independently. The 137. Id. (citing Plaintiff’s Exhibits 2, 16). Kansas City Monarchs disbanded after the 1964 season.” Id., n.25 to pages 383-387. 138. Id. 113. Robert A. Caro won a Pulitzer Prize for his 1975 biography of 139. Id. at 1116 (citing Defendant’s Exhibit K). Moses: The Power Broker: Robert Moses and the Fall of New York. 140. Id. (citing Defendant’s Exhibit L). 114. MICHAEL SHAPIRO, THE LAST GOOD SEASON: BROOKLYN, THE 141. Id. DODGERS, AND THEIR FINAL PENNANT RACE TOGETHER 323 142. See Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d. 492, 495 (Doubleday 2003). (2d Cir. 1961). 115. Id. at 321. 143. Id. at 1118 (citing W.W.W. Pharmaceutical Co., Inc. v. Gillette Co., 116. Mr. Novak: Boy Under Glass (NBC television broadcast Nov. 24, 808 F.Supp. 1013 (S.D.N.Y. 1992), aff’d, 984 F.2d 567 (2d Cir. 1993), 1964). quoting McGregor-Doniger, Inc. v. Drizzle, Inc., 599 F.2d at 1131- 117. The Beverly Hillbillies: The Clampetts and the Dodgers (CBS television 33). broadcast Apr. 10, 1963). 144. Id. at 1119 (quoting W.W.W. Pharmaceutical, 984 F.2d at 572).

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 201 145. Id. Brooklyn Dodgers. The second hour concerned the team’s move to 146. Id. at 1120. Los Angeles. 147. Id. 169. Interview with Roger Kahn (Dec. 28, 2010). 148. Id. 170. Interview with Sol Gabay (Jan. 8, 2011). 149. Id. at 1120-21. 171. Rich Calder, Con Ed to preserve piece of Washington Park, N.Y. POST, Oct. 19, 2010, available at http://www.nypost.com/p/ 150. Id. at 1121. blogs/brooklyn/con_ed_to_preserve_piece_of_washington_ 151. Id. DQXtE7OFTeFCTGzijaXcyI. The Dodgers’ last season in Washington Park was 1912. The team debuted in Ebbets Field in 152. Id. at 1121-22. 1913. 153. Id. at 1124. 172. Id. 154. Id. 173. Id. 155. Id. n.15. 174. Telephone Interview with Fred Wilpon (Jan. 4, 2011). Branch 156. Id. at 1124-25. Rickey was the driving force behind the Continental League created in the late 1950s. It never got off the ground, but its 157. Id. at 1125. efforts gave birth to two American League teams and two 158. 830 F.2d 1217 (2d Cir. 1987). National League teams. American League: California Angels and 159. Id. at 1228 n.2. Washington Senators. The original Washington Senators moved to Minnesota and became the Twins in 1961. The new incarnation 160. Major League Baseball Properties, 817 F.Supp. at 1131. of the Washington Senators moved to Texas after the 1971 season 161. Id. and became the Rangers in 1972. National League: New York Mets and Houston Colt .45s. After the 1964 season, the Houston team 162. Id. at 1133. changed its name to the Astros. 163. Id. at 1134. 175. Kahn Interview, supra note 99. 164. Id. at 1134-35. The Dodgers conducted Spring Training in Vero Beach, Florida from 1948 to 2008. “Dodgertown” was the name of David Krell is an intellectual property attorney and the team’s training complex. The Dodgers currently train at the noted speaker and writer. He is a member of the New Camelback Ranch in Glendale, Arizona. York, New Jersey and Pennsylvania bars. David’s web- 165. Victor Epstein and Oren Yaniv, Brooklyn Cyclones’ KeySpan site is www.davidkrell.com. Park renamed MCU Park, DAILY NEWS, Feb. 4, 2010, available at http://www.nydailynews.com/ny_local/ David dedicates this article to his father, Carl Krell, brooklyn/2010/02/04/2010-02-04_brooklyn_cyclones_keyspan_ park_renamed_mcu_park.html. who passed away in 1999. David learned about the tremendous dedication, loyalty, and commitment of Brook- 166. Anderson, supra note 107, at 36-37. lyn Dodgers fans from his father who was at Ebbets 167. Telephone Interview with George Will (Dec. 20, 2010). Field for Game 5 of the 1953 World Series—”When 168. In 2007, HBO Sports debuted a two-hour documentary entitled Mickey Mantle hit the grand slam, you could hear a pin The Ghosts of Flatbush. The ﬁ rst hour concerned the history of the drop at Ebbets Field, David.”

202 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2011 | Vol. 22 | No. 1 Krell’s Korner is a column about the people, events, and deals that shape the entertainment, arts, and sports industries.

When Johnny Comes Marching Into Court: Carson Productions vs. Here’s Johnny Portable Toilets, Inc. By David Krell

During the period of 1962-1992, Johnny Carson epito- compete against The Tonight Show. Murphy says that Gold mized the tripling essence of a comedian—Town Crier, will not last long because he is going up against Carson.2 Court Jester, and cultural barometer. Arsenio Hall fared somewhat better. In 1989, comedi- As host of The Tonight Show, he guided us through the an Arsenio Hall debuted a syndicated late night television complexities of the day’s events with a comedy mono- program produced and distributed by Paramount—The logue resting fi rmly on an undercurrent of wonder nur- Arsenio Hall Show. Initially, Hall appealed to a younger tured by his Midwestern upbringing in Nebraska. He was demographic with guests fueled by the MTV generation not glamorous, nor was he part of the glitterati, literati, that The Tonight Show paradigm largely ignored. After Los or artistic elite. Carson’s comedy acumen allowed him to Angeles Lakers legend Magic Johnson disclosed his HIV- uncover humor in the day’s events with the bright-eyed positive status, for example, Arsenio Hall brought him on view of an everyman constantly amazed by the human stage during the monologue.3 The audience greeted them condition. with a reverent ovation that resounded throughout the studio. Johnny Carson served an important purpose—he struck the elusive chord of humor that was neither highbrow nor pedantic, neither sophisticated nor pedestrian. “Johnny Carson served an important In turn, Johnny Carson’s humor was an invaluable com- purpose—he struck the elusive chord modity for Americans whose days began with an alarm clock viciously rousing them out of the safety of slumber, of humor that was neither highbrow whose lives fi lled daily with pressures both big and small, nor pedantic, neither sophisticated nor and whose evenings faded all too soon with a yearning pedestrian.” for escape based in lightness. Carson’s endurance inspired a nickname—King The Arsenio Hall Show was not your father’s late night of Late Night. A prominent fi xture in television’s royal television program, though Hall’s tenure was short-lived hierarchy, Carson did not achieve his status automatically, compared to Carson’s seemingly infi nite elasticity. Para- immediately, or passively. Competitors abounded and, mount cancelled The Arsenio Hall Show in 1994. ultimately, abided Carson’s dominance in the late night Saturday Night Live poked fun at Hall’s capture of television arena—Jerry Lewis, Dick Cavett, Joan Rivers, a younger, hipper, edgier viewing audience in a sketch Alan Thicke, David Brenner, Pat Sajak, Merv Griffi n, Rick called Carsenio, where Dana Carvey portrays Johnny Car- Dees, Dennis Miller, and Joey Bishop. son sporting a late 1980s hip attire and a fl at-top hairstyle Murphy Brown honored Carson’s powerful gover- inspired by Hall.4 nance of late night television in the episode Uh-Oh, Part When Hall debuted, Carson was nearing the 30-year 3.1 The title character is a gifted broadcast television mark. Ratings wars, affi liate relations, contract negotia- network journalist with an acerbic wit obscuring a deep- tions, competing talk shows, four marriages, three di- rooted desire to fi ll a romantic void in her life. Jerry Gold vorces, plugging guests, creating comedy sketches, and may be the answer. A seemingly misogynistic radio talk a relentless demand to daily excavate humor from the show host, Gold connects emotionally with Murphy. On headlines provided Johnny Carson with a crucible the the verge of taking their relationship to a serious level, likes of which no entertainer has suffered, since or before. Gold discloses an obstacle—a television network wants He endured because of consistency. him to move to Los Angeles to host a talk show that will

NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 99 Arsenio drew attention because of his youth, energy, In June 1956, Allen went to prime time for a comedy- and guests. Johnny drew attention because of his famil- variety show The Steve Allen Show. Consequently, he split iarity, reliability, and status as a national nightly custom. Tonight! hosting duties with Ernie Kovacs for the 1956-57 America knew that the day was coming in for a safe land- season. Allen left Tonight! after that season to focus on his ing when the fanfare began, the credits rolled, and an- comedy-variety show. Kovacs also departed. nouncer Ed McMahon blared the show’s title, guests, and ritualistic introduction—Heeeere’s Johnny! NBC changed the program’s scope to a news and feature format and the program’s title to Tonight! America During his reign, the King of Late Night faced a royal After Dark. Hosted by Jack Lescoulie and then Al “Jazzbo” fl ush, so to speak, when a portable toilet company used Collins, it lasted about six months—January 28, 1957 to the phrase Here’s Johnny to promote its products. In Carson July 26, 1957. Jack Paar took over the program—The To- v. Here’s Johnny Portable Toilets, Inc.,5 the rights concerning night Show starring Jack Paar—on July 29, 1957. privacy, publicity, and trademark took the spotlight. Paar was in job search mode when he got tapped for the host position. The Tonight Show Thrust back into the ranks of the un- The genesis of The Tonight Show began in 1950 when employed I busied myself mowing the NBC introduced the concept of late night programming lawn—the only other profession I know. with Broadway Open House, the fi rst late-night comedy-va- I was dejectedly pushing the mower one riety series on a television network. It premiered on May day when I got a phone call from Earl 29, 1950 and ended its run a little more than a year later Wilson, the syndicated columnist who on August 24, 1951. covers the bosom beat. He had narrowly Morey Amsterdam and Jerry Lester shared hosting escaped being struck by falling ratings in duties. When Amsterdam left the program, Lester owned the collapse of a late night NBC TV show the spotlight. Sort of. called America After Dark. Before fl eeing the scene of the accident, Earl told me, he A buxom blonde named Jennie Lewis found herself had recommended to NBC that I replace the darling of late night television. With her one-name the departed program. “Don’t call them,” moniker, Dagmar, she acted the part of the prototypical he cautioned me. “Let them call you.” dumb blonde, an archetype perfectly portrayed later by Jayne Mansfi eld, Marilyn Monroe, and Suzanne Somers. Stifl ing the urge to grab the phone, I Dagmar’s popularity led to her hosting the show when waited impatiently. Finally it rang. Sure Lester departed in May 1951. enough, it was NBC. A vice-president invited me to lunch at 21, a restaurant so While Broadway Open House pioneered the concept chic that they put seersucker sleeves on of comedy-variety offerings in the late night sector, Steve the banisters in the summer. Although Allen designed the blueprint for late night television that I had been doing network radio and remains the television industry standard. television shows for ten years, including On September 27, 1954, Allen unveiled Tonight! on two on his own network, he opened the NBC. He introduced hallmarks duplicated by subsequent conversation by saying: “Now tell me, late night talk show hosts, including band leader, mono- Jack, just what is it you do?” Despite this logue, and celebrity interviews. Allen also created come- inauspicious start to the conversation, he dy bits that continued in spirit decades later on Late Night wound up by offering me a show. When I with David Letterman.6 Where Allen transformed himself heard what it was I was underwhelmed. into a human tea bag and got dunked in an oversized tea- Being selected for it was a signal honor, cup, Letterman wore a suit of Velcro and jumped to a wall like being chosen as a Kamikaze pilot. where he stuck. Letterman also wore an Alka-Seltzer suit The show was to run from 11:15 pm to 1 and entered a dunk tank, among other stunts. a.m. nightly and to be called Tonight!— the title of a program that had previously Allen’s Tonight! featured stock actors in recurring occupied that troubled late night hour. roles, for example, Don Knotts as the Nervous Guy and Expectations were high but the budget Louis Nye as Gordon Hathaway, a highbrow type with was low. The previous debacle had scat- the catch phrase Hi Ho Steverino. Letterman had Calvert tered the audience, and even Mr. Keen, DeForrest as Larry “Bud” Melman and Chris Elliott in a Tracer of Lost Persons couldn’t fi nd a sur- variety of roles, including The Guy Under the Seats who viving sponsor. NBC was tempted to give makes appearances from his base beneath the stage. the time back to the Indians and cow-

100 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 boys, but fl ushed with failure recklessly of people in television are very private, decided to give live programming one but my father was inclusive and person- last try with me.7 able. He went to lunch with guests before the show. He was also emotional in his Paar fl ourished with a format designed for his con- excitement and enthusiasm. That’s why versational approach. “Jack created the fi rst real talk show people tuned in.11 where people talked. He was so many things at midnight and he was live and he was exciting and he found new On February 10, 1960, Paar sacrifi ced his job because people and he helped new people and he brought on the of an internal censorship decision by NBC. The network superstars of the world who never before would even censors cut out a joke from the show taped earlier that think of exposing themselves to an ad lib show.”8 day for the late night broadcast. During his monologue, Paar made a double entendre joke about the term “W.C.” Indeed, Paar embraced the challenge of carving a which means water closet in England. In America, a water niche with his personal imprint in the late night time slot closet is a bathroom. But it also has another connotation, Tonight fostered by Steve Allen. “Because there was no one that led to Paar’s comedic intentions. Show. There was no format. There was nothing but a title—Tonight. So I did all I could do, was—get Elsa Max- An English lady, while visiting Switzer- well, Johnny Winters, Jose Melis who was in the Army land, was looking for a room, and she with me and we started to do the only thing you could do asked the schoolmaster if he could rec- which was get a desk and try and fi nd witty people and ommend any to her. He took her to see start something called a conversation show.”9 several rooms, and when everything was settled, the lady returned to her home Paar’s regular guests also included Charley Weaver, to make the fi nal preparations to move. Alexander King, Dody Goodman, and Genevieve, a When she arrived home, the thought sud- French entertainer. Jonathan Winters expressed his denly occurred to her that she had not mastery of improvisational comedy. Paar admitted that seen a “W.C.” (water closet) around the keeping up with Winters proved futile. “Ad libbing with 10 place. So she immediately wrote a note to Johnny is like shoveling smoke. You can’t do it.” the schoolmaster asking him if there was As the nation’s unoffi cial conduit of current events, a “W.C.” around. The schoolmaster was a Paar brought sensitivity, wit, and accessibility to late very poor student of English, so he asked night television. He had guests who brought laughter bal- the parish priest if he could help in the anced by guests who brought insight. matter. Together they tried to discover the meaning of the letters “W.C.” and Randy Paar, Jack Paar’s daughter and a prominent the only solution they could fi nd for the insurance attorney at Kasowitz Benson Torres & Fried- letters was a Wayside Chapel. The school- man in New York City, further illustrates the unique value master then wrote to the English lady the that her father brought to The Tonight Show and his other following note: broadcasting ventures. Dear Madam: My father realized before other broad- casters that conversation is really the I take great pleasure in informing you content of television that shows off abil- that the “W.C.” is situated nine miles ity. Father could take a boring person and from the house you occupy, in the center make him or her interesting. That is a of a beautiful grove of pine trees sur- remarkable ability. rounded by lovely grounds. He liked fi nding stories and packaging It is capable of holding 229 people and it them in a way that everyone would en- is open on Sunday and Thursday only. As joy. He was very involved in translating there are a great number of people and his own experience. He could go to the they are expected during the summer hardware store and come back with a months, I would suggest that you come funny story. early; although there is plenty of standing room as a rule. Besides being a terrifi c monologist, though, he brought curiosity, honesty, You will no doubt be glad to hear that a and enthusiasm to The Tonight Show. In good number of people bring their lunch my father’s era, the humor was driven and make a day of it. While others who by stories, not jokes. He also invested can afford to go by car arrive just in time. himself emotionally in his shows. A lot I would especially recommend that your

NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 101 Ladyship go on Thursday when there is a because of his fearlessness. “Paar took his private neuro- musical accompaniment. ses and turned them into a public spectacle. As he began his monologue each evening, the 8 million viewers were It may interest you to know that my waiting not for bon mots or thigh-slapping humor, but daughter was married in the “W.C.” and for Jack’s catharsis of the moment. He might walk off the it was there that she met her husband. show, break into tears, steamroller a guest, insult a politi- I can remember the rush there was for cian or a commentator, or threaten to quit altogether.”15 seats. There were ten people to a seat usually occupied by one. It was wonder- Carson’s challenge was immediate, concrete, and ter- ful to see the expressions on their faces. rifi c. He needed to win over the audience, not to mention the NBC brass—the former with comedy, the latter with The newest attraction is a bell donated by ratings. a wealthy resident of the district. It rings every time a person enters. A bazaar is Of course, Johnny wasn’t solely a crea- to be held to provide plush seats for all ture of his writers and cue cards. He the people, since they feel it is a long-felt wrote his own material for the Friars and need. My wife is rather delicate, so she other performances. But that wasn’t the can’t attend regularly. same as coming up with zingers night after night when he knew he had to be I shall be delighted to reserve the best funny. Not only that, but he had to be seat for you if you wish, where you will funnier than Paar; he wasn’t about to be seen by all. For the children, there is fl ash his psyche whenever things got a special time and place so that they will dull, or wave one political fl ag or another. not disturb the elders. Hoping to have been of some service to you, I remain. Johnny had something else going for him. He was a WASP in a profession full Sincerely, of Jewish comedians. The television exec- The Schoolmaster12 utives knew that much of their audience was in Topeka and Peoria and Tulsa and When NBC censored the joke, a teary Paar responded other stations in the heartland, where the on the February 11, 1960 broadcast: “I am leaving The To- borscht belt was considered an item of night Show. There must be a better way of making a living apparel. They needed a host whom farm- 13 than this.” ers in Oklahoma, salesmen in San Jose, Paar’s departure turned the nation’s airwaves into and housewives in Binghamton would shockwaves as headlines captured the controversy. A want to stay up for each evening, yet one nightly ritual under Paar’s aegis, NBC’s storied late night worldly enough to maintain the interest franchise faced jeopardy. Guest hosts took temporary cus- of bankers in New Rochelle and brokers tody of Paar’s former position. Paar’s appeal, however, in Chicago. remained immeasurable. When NBC fi rst contacted Johnny, he On March 7, 1960, Paar returned. With his usual said no. Any performer would have been comedic aplomb, Paar began the broadcast with a seam- fl attered to be asked to replace Paar, but less continuance providing a nexus to his departure an- Johnny felt that he simply wouldn’t suc- nouncement. “As I was saying before I was interrupted. ceed. Al Bruno tried to convince him that I believe my last words were that there must be a better he was wrong. Agents and managers are way of making a living than this. Well, I have looked. professional optimists, but Bruno genu- And there isn’t.”14 inely felt that Johnny could go to the top. He told Johnny that he was good, the Jack Paar stepped down from The Tonight Show per- greatest. He spent as much time selling manently on March 30, 1962. Six months later, Johnny Johnny to himself as to the networks. Carson replaced him. NBC approached Johnny a second time, Carson’s curriculum vitae included television net- as soon as it became clear that Paar was work programs—Carson’s Cellar, The Johnny Carson Show, defi nitely leaving. This time Johnny ap- Who Do You Trust? Additionally, Carson guest hosted for peared interested. But ABC refused to Paar on occasion, though taking over The Tonight Show allow him to abandon Who Do You Trust? was different than being a temporary stand-in for the Until his contract ran out, in the fall of emotionally bare Paar who connected with audiences 1962.16

102 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 NBC waited along with America as a succession of such as portable toilets, in the absence of a showing of guest hosts fi lled the hosting gap at The Tonight Show until other mitigating factors.”21 Carson’s debut on October 1, 1962. The court further explained its analytical paradigm— Carson avoided a revolving door of familiar guests “A mark must be viewed in its entirety and in context in favor of developing a revolving door of familiar char- since it is the overall impression that counts.”22 It found acters portrayed by him—Art Fern, the fast-talking huck- that the similarities between the uses of the products ex- ster; Floyd R. Turbo, the Midwestern conservative editori- isted in name only. Carson used the phrase for entertain- alist that dressed in plaid; Aunt Blabby, an elderly woman ment services and his apparel company that marketed with a short fuse that ignited wisecracking retorts; and, products to male consumers. Braxton used the phrase for of course, Carnac the Magnifi cent, a seer who responded products sold or rented to event promoters and industrial with the corresponding question when prompted with contractors. Marketing and distribution channels also the answer by Ed McMahon. Carson also featured The differed. Mighty Carson Art Players, a comedy sketch troupe. Intent, the court emphasized, “[i]s an important con- What Steve Allen began and Jack Paar furthered, sideration in determining likelihood of confusion. Bad Johnny Carson morphed into his own property. faith in the adoption and use of a trademark is inferred by efforts of a party to ‘pass off’ its product as that of another.”23 When Johnny Comes Marching Into Court By the late 1970s, Carson’s status as a late night televi- Here, passing off did not exist. Braxton admitted in a sion institution provided a target. deposition that he wanted to make a “good play” on the “Here’s Johnny” phrase. He also used the word “com- In 1976, Earl Braxton formed Here’s Johnny Portable modian” as a play on the word “comedian” to further his 17 Toilets, Inc., a Michigan corporation. Braxton also ap- efforts.24 Braxton’s intent to profi t from the phrase that plied to register the “Here’s Johnny” phrase as a trade- Carson popularized did not preclude using the phrase for mark with the United States Patent and Trademark Offi ce. marketing portable toilets, according to the court. In turn, Carson and his apparel company—Johnny Car- son Apparel, Inc.—sued Here’s Johnny Portable Toilets, By contrast, an intent to confuse the Inc. in the United States District Court for the Eastern Dis- public into mistakenly purchasing Defen- trict of Michigan for unfair competition, invasion of com- dant’s product, believing it to be that of mercial rights or right of privacy, deceptive advertising, the Plaintiffs’ cannot readily be inferred and common law trademark infringement. from Braxton’s admissions and actions. The Court’s conclusion as to lack of in- The USPTO suspended Braxton’s application until the tent to deceive is supported by the fact 18 court rendered a decision. that use of the word “john” within the Although Carson had not registered the phrase with portable toilet trade is customary.… For the USPTO, the court concluded, “Trademark rights in example, some of the Michigan-based names and symbols do not require formal registration. portable toilet companies carry the names What is required, however, is a showing that some form of “Johnny On the Spot,” “Porta-John,” 25 of ownership rights has arisen from its prior use in con- and “Tote-A-John.” 19 nection with a particular product or service.” Further, the court concluded that no actual dam- The Tonight Show linked Carson to the “Here’s John- ages occurred. Ultimately, it found that Braxton’s use ny” phrase. “It is clear that John W. Carson popularized did not constitute a likelihood of confusion, mistake, or 26 the mark, “Here’s Johnny.” It is also clear that a substan- deception. tial segment of the American public associates the mark Carson also claimed that Braxton’s use amounted to 20 with the entertainer, Johnny Carson.” an invasion of privacy and publicity rights. The court out- Familiarity notwithstanding, the court found that lined the four torts described by Dean Prosser in his 1960 27 the “Here’s Johnny” phrase lacked the potency required law review article Privacy: to shut out Braxton. “[T]he Court does not believe that 1. Intrusion upon the Plaintiff’s seclusion or solitude, Plaintiffs’ use of ‘Here’s Johnny’ is so strong and distinc- or into his private affairs. tive that its use by others should be foreclosed in the market place. Accordingly, the Court concludes that ‘Here’s 2. Public discourse of embarrassing private facts Johnny’ is not a strong mark and, therefore, it is not enti- about the Plaintiff. tled to a broad scope of protection which would preclude 3. Publicity which places the Plaintiff in a false light its use on completely unrelated non-competitive products in the public eye.

NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 103 4. Appropriation, for the Defendant’s advantage, of 2. relatedness of the goods the Plaintiff’s name or likeness. 3. similarity of the marks Carson claimed that Braxton violated the fourth prong of privacy rights defi ned by Prosser. He also 4. evidence of actual confusion claimed that a right of privacy claim extended beyond 5. marketing channels used taking one’s name to taking an “aspect of identity.”28 Car- son lost on both counts. 6. likely degree of purchaser care The court found that “Here’s Johnny” is not a name 7. defendant’s intent in selecting the mark belonging to Carson, his company, or Braxton. It also re- 8. likelihood of expansion of the product lines fused Carson’s request to extend the rights. The Court of Appeals noted the two-step process that The right of publicity derives from a ce- it adopted in the Frisch’s Restaurants case. “[T]hese eight lebrity’s proprietory [sic] interest in his/ foundational factors are factual and subject to a clearly her public personality and in his/her erroneous standard of review, while the weighing of these right to be compensated for the use of fi ndings on the ultimate issue of the likelihood of confu- aspects of that personality. sion is a question of law.”34 Having already narrowly construed the The Court of Appeals ruled that the District Court’s privacy infringement claim which has fi ndings were not clearly erroneous. It agreed that Carson been asserted by Plaintiffs, the Court lacked the basis for a likelihood of confusion argument does not believe that it would be prudent because Braxton did not intend to associate an endorse- to allow recovery for a right of publicity ment or sponsorship by Carson. “The general concept claim which does not more specifi cally underlying the likelihood of confusion is that the public identify Johnny Carson. Therefore, this believe that ‘the mark’s owner sponsored or otherwise ap- Court determines that the Plaintiffs have proved the use of the trademark.’”35 failed to demonstrate that their right of publicity has been invaded.29 Regarding privacy and publicity rights, the Court of Appeals explained the state’s views before analyzing Car- The court dismissed the action. Carson appealed to son’s claims. “Michigan law, which governs these claims, 30 the United States Court of Appeals in the Sixth Circuit. has not yet clearly addressed the right of publicity. But The Court of Appeals began by briefl y explain- the general recognition of the right suggests to us that the ing the background of Carson and the “Here’s Johnny” Michigan courts would adopt the right. Michigan has rec- 36 phrase—Carson was an entertainer who fi rst used the ognized a right of privacy.” phrase “Here’s Johnny” in 1957 when he had a television The right of publicity evolved to protect the rights of program on the American Broadcasting Company. It had famous people to profi t from their celebrity status. “The been a standard part of The Tonight Show since Carson be- theory of the right is that a celebrity’s identity can be gan hosting in 1962. Carson also authorized the phrase’s valuable in the promotion of products, and the celebrity use for a chain of “Here’s Johnny” restaurants, a business has an interest that may be protected from the unauthor- venture outside his usual scope of entertainment. Like ized commercial exploitation of that identity.”37 the lower court, the Court of Appeals acknowledged the phrase’s familiarity. “The phrase ‘Here’s Johnny’ is gener- Here, the Court of Appeals diverted from the District ally associated with Carson by a substantial segment of Court. It found that the absence of a celebrity’s name or the television viewing public.”31 likeness did not avoid culpability. Carson claimed that Braxton engaged in unfair com- We believe that, on the contrary, the dis- petition, thereby violating Section 43(a) of the Lanham trict court’s conception of the right of Act, 15 U.S.C. Section 1125 (a) (1976), and Michigan publicity is too narrow. The right of pub- common law. He sought an injunction against Braxton. licity, as we have stated, is that a celebrity Applying the likelihood of confusion analysis standard has a protected pecuniary interest in the for an equitable relief test, the Court of Appeals used the commercial exploitation of his identity. eight factor test designated by the Sixth Circuit Court If the celebrity’s identity is commercially of Appeals in Frisch’s Restaurants, Inc. v. Elby’s Big Boy of exploited, there has been an invasion of Steubenville, Inc.32 his right whether or not his “name or likeness” is used. Carson’s identity may 33 The eight factors are: be exploited even if his name, John W. 38 1. strength of the plaintiff’s mark Carson, or his picture is not used.

104 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 The Court of Appeals cited cases where the defen- right of publicity under Michigan law. dants violated publicity rights even though the use did Braxton appealed to the United States not involve the claimant’s name, or likeness. Court of Appeals for the Sixth Circuit. The Court of Appeals affi rmed the Motschenbacher v. R.J. Reynolds Tobacco Co.39 revolved ruling.48 around a commercial’s unauthorized use of a picture of a distinctive race car belonging to racer Lothar Motschen- Braxton attempted to register “Here’s Johnny” with bacher. Although the commercial did not use Motschen- the USPTO after Johnny Carson died in 2005. Carson’s bacher’s likeness, the car’s decorative markings identifi ed estate fi led a notice of opposition. In 2010, the Trademark it as Motschenbacher’s car. Some viewers thought that Trial and Appeal Board ruled against Braxton in sum- Motschenbacher was driving the car in the commercial. mary judgment. The judges ruled that Carson’s status as a California resident entitled him to post-mortem publicity Ali v. Playgirl, Inc.40 involved the New York right of rights. Consequently, the injunction’s force remains. privacy statute and the common law right of publicity. Playgirl magazine published a drawing of “a nude, black man sitting on a stool in a corner of a boxing ring with Endnotes hands taped and arms outstretched on ropes.”41 1. Murphy Brown: Uh-Oh, Part 3 (CBS television broadcast Oct. 22, 1990). Murphy Brown was a sitcom staple for CBS. It aired from The drawing did not identify the plaintiff, former 1988 to 1998. In its fi rst nine seasons, the show aired on Monday heavyweight champion Muhammad Ali, by name or im- nights at 9:00 p.m. CBS moved it to Wednesday nights at 8:30 p.m. age—the caption for the drawing was “Mystery Man.” Ali in its tenth and fi nal season. Murphy Brown starred Candice Bergen in the title role, a recovering alcoholic news reporter on FYI, a prevailed on an identifi cation argument, nevertheless, be- successful television network program. cause a verse accompanying the drawing identifi ed “Mys- 2. Id. tery Man” as “The Greatest.” Ali frequently called himself 3. On November 7, 1991, Magic Johnson held a press conference to “The Greatest” in media appearances and interviews. announce that he tested positive for HIV. “The district court took judicial notice of the fact that ‘Ali 4. Saturday Night Live (NBC television broadcast, May 18, 1991). has regularly claimed that appellation for himself.’”42 5. 698 F.2d 831 (6th Cir. 1983), aff’d, 810 F.2d 104 (6th Cir. 1987). 43 Hirsch v. S.C. Johnson & Son, Inc. concerned a right 6. Late Night with David Letterman premiered on February 1, 1982 and of publicity issue involving former NFL star Elroy “Cra- ended on June 25, 1993. It aired at 12:30 a.m. following The Tonight zylegs” Hirsch.44 S.C. Johnson marketed a ladies shaving Show. Conan O’Brien succeeded David Letterman as the host of Late Night from September 13, 1993 to February 20, 2009. Jimmy gel called “Crazylegs.” The court found that a celebrity’s Fallon succeeded Conan O’Brien as the current Late Night host. famous nickname holds equal legal weight to an actual Fallon’s fi rst broadcast occurred on March 2, 2009. name. “All that is required is that the name clearly iden- 7. JACK PAAR, I KID YOU NOT 74 (1st ed., Little, Brown & Company tify the wronged person. In the instant case, it is not dis- 1960). puted at this juncture of the case that the nickname identi- 8. American Masters: Jack Paar: As I Was Saying…And More! (Kultur) fi ed the plaintiff Hirsch.”45 (PBS television broadcast May 7, 1997). 9. Id. The Court of Appeals further relied on Prosser. “If a fi ctitious name is used in a context which tends to indi- 10. Id. cate that the name is that of the plaintiff, the factual case 11. Telephone Interview with Randy Paar, Partner, Kasowitz Benson for identity is strengthened.”46 Torres & Friedman, in New York, N.Y. (April 20, 2011). 12. PAAR, supra note 7, at 222-23. Braxton’s argument weakened because he had ad- 13. The Tonight Show (NBC television broadcast Feb. 11, 1960). mitted that he used an affectation familiar to the general 14. The Tonight Show (NBC television broadcast Mar. 7, 1960). public to link his product with Mr. Carson. The Court of 15. LAURENCE LEAMER, KING OF THE NIGHT: THE LIFE OF JOHNNY CARSON Appeals noted Braxton’s counsel confi rming the strat- 133 (William Morrow & Company, Inc. 1989). egy in the District Court: “Now, we’ve stipulated in this 16. Id. at 134-35. case that the public tends to associate the words “Johnny Carson,” the words ‘Here’s Johnny’ with plaintiff, John 17. Carson v. Here’s Johnny Portable Toilets, Inc., 498 F. Supp. 71, 73 (E.D. Mich. 1980). Carson and, Mr. Braxton, in his deposition, admitted that 18. Id. at 73-74. he knew that and probably absent that identifi cation, he would not have chosen it.”47 19. Id. at 74 (citations omitted). 20. Id. The Court of Appeals vacated and re- 21. Id. manded. On remand, the United States 22. Id. at 75. District Court for the Eastern District of Michigan enjoined Braxton’s corporation 23. Id. from using the “Here’s Johnny” phrase in 24. Id. any state where the use violated Carson’s 25. Id.

NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 105 26. Id. at 77. 42. Id. (quoting Ali, 447 F. Supp. at 727).

27. Id. at 77 (citing Dean William Prosser, Privacy, 48 CAL. L. REV. 383, 43. 280 N.W.2d 129 (Wis. 1979). 389 (1960)). 44. Hirsch played for the University of Wisconsin Badgers football 28. Id. at 77. team. He received the “Crazylegs” moniker from sportswriter Chicago Daily News 29. Id. at 78 (citations omitted). Francis Powers of the because of a 61-yard touchdown run in the 1942 game against Great Lakes. Powers 30. Carson, 698 F.2d 831. wrote that Hirsch’s “crazy legs were gyrating in six different 31. Id. at 832-33. directions all at the same time.” Hirsch played for the Chicago Rockets of the All-America Football Conference from 1946-48. He 32. 670 F.2d 642 (6th Cir. 1982). played for the Los Angeles Rams from 1949-57. Elroy Hirsch Passes 33. 698 F.2d at 833 (citing 670 F.2d at 648). Away at 80, UWBADGERS.COM (2011), http://www.uwbadgers. com/sports/m-footbl/spec-rel/012804aaa.html (last visited June 34. Id. at 833 (citing 670 F.2d at 651). 2011). 35. Id. at 834 (citing Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 45. 698 F.2d. at 835-36 (quoting 280 N.W.2d at 137). 79 (2d Cir. 1981) (emphasis added) (quoting Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 46. 698 F.2d at 836 (quoting PROSSER, supra note 27 at 403). 1979))). 47. Id. at 836. 36. Id. at 834, n.1. The Court of Appeals suggested two resources in 48. Carson v. Here’s Johnny Portable Toilets, Inc., 810 F.2d. 104 (6th this area: DEAN WILLIAM PROSSER, HANDBOOK OF THE LAW OF TORTS Cir. 1987). § 117 at 805 (4th ed. 1971), and Beaumont v. Brown, 257 N.W.2d 522 (Mich. 1977). 37. 698 F.2d at 835. David Krell is an intellectual property attorney and 38. Id. at 835. noted speaker and writer. He is a member of the New York, New Jersey, and Pennsylvania bars. David’s web- 39. 498 F.2d 821 (9th Cir. 1974). site is www.davidkrell.com. 40. 447 F. Supp. 723 (S.D.N.Y. 1978). 41. Carson, 698 F.2d. at 835.

106 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 Krell’s Korner is a column about the people, events, and deals that shape the entertainment, arts, and sports industries.

I’ll Be Seeing You: Jackie Onassis, Ron Galella, and the Birth of the Modern Paparazzi By David Krell

The Compass of the Eye he did not know he needed. In turn, he maximized the Decades before TMZ, there was Ron Galella. outlet’s benefi ts, albeit in geographical regions unfamiliar to a person surrounded by the energetic aura of a major Galella was a photographer who redefi ned relentless- city. ness in his pursuit of Jacqueline Bouvier Kennedy Onassis during the 1970s. He became a legend, despised by the We were handy because of my father’s public revering Jackie, and admired by his shutterbug tools. We picked it up by osmosis. He competitors for commitment to his craft. was a good provider but he didn’t discipline me, my sister, or my three broth- The shot that secured his legend status captured a ers. The Air Force gave me the discipline moment of Jackie’s graceful gait on Madison Avenue. that my family life did not. First, I was Her windswept hair, slender body in mid-stride, and based at Sampson Air Force Hall in the smile indicating shyness made for a portrait that crowned Finger Lakes region of upstate New York. Galella’s otherwise extensive portfolio. He described the A 5:00 a.m. march to the mess hall was photograph as his Mona Lisa. cold! Then, I was assigned to Denver. It Yet Galella’s exploits in capturing Onassis through his has natural, artistic benefi ts in addition camera lens became headlines as the former First Lady to fresh air, like Colorado Springs, Pike’s squared off against him in a courtroom. The case tested Peak, and other godly sculptures. the limits of the First Amendment. When I got discharged in 1955, I had a Ron Galella’s walk of destiny that led him to photo- choice—ceramics, which I had practiced graph one of the most famous women in the world began for about a year after high school, or pho- during his high school years in the Bronx after World War tography. I chose the latter and went to II. A portrait of the photographer as a young man begins Art Center College. I graduated with four with his rise each morning in the Galella homestead at years of course work in only three years. 1310 Oakley Street to attend high school where he trained Essentially, I wanted to be creative and an 2 to be an artist. Visions of swashbuckling heroes from opportunist. literature raced through his creative thoughts, and Galella An opportunist he was. Undoubtedly. often drew his heroes—D’Artagnan of The Three Muske- teers and Cyrano de Bergerac. Galella expanded his photography education beyond the dark room by studying the great photographers and With the Korean War forcing a draft of the nation’s master artists. When Galella was stationed in Orlando young men, Galella enlisted in the Air Force rather than during his Air Force tenure, a decade before Walt Disney be subject to the draft. The enlistment proved to be the pieced together the plans for Disney World, he went to turning point for this son of a cabinet-maker who val- art school because the Air Force paid for art classes. He ued exactitude in his work and a woman who cherished bought his fi rst professional camera from a sergeant for fashion and art. “We had three choices for a vocation. $150—a Rollfl ex. The sergeant also sold Galella a set of Body Fender. Camera Repair. Photography. Painting and encyclopedias for $30. It opened up an educational vista. sculpture had their day. Photography is the closest thing to art and a photographer can do what a painter can’t— “The other guys played cards. Gambling is a waste.” capture a spontaneous moment. I was lucky to get the said Galella. “I read about the great photographers photography slot.”1 because I wanted to be one. What distinguishes me from my competitors is that I am more educated in art. To be The novice photographer who admittedly lacked pa- a great photographer, you have to study compositions ternal discipline found an artistic outlet and the structure

160 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 along with painting, color, and lighting. You can learn ing these efforts at the contended behest and inducement compositions from great art. Photographers often miss of defendant Onassis.”5 these opportunities. So, I give them advice, even though Onassis counterclaimed on March 8, 1971. She sought they are competitors. I was inspired by the great artists of $1.5 million in compensatory and punitive damages in the Renaissance, like da Vinci and Michelangelo.”3 addition to an injunction against Galella. She claimed that In the artistic galaxy, working on commercial pho- Galella violated “her common law, statutory and consti- tography assignments is light years away from painting tutional rights of privacy and [committed] intentional the Mona Lisa or sculpting a statue of David. That was infl iction of emotional distress, assault, harassment and where Galella found himself after graduating from Art malicious prosecution.”6 Center College in 1958 and returning to New York City as a recession smacked the country harder than a Joe Louis The United States Government moved to intervene knockout punch. on July 6, 1971. The United States District Court granted the motion. On October 20, 1971, the Government fi led a I managed to work in freelance pho- complaint arguing that Galella’s actions equaled “interfer- tography. I did jobs for the Dellwood ence with the protective duties of the United States Secret Milk Company and an interior design Service toward the minor children of defendant Onassis magazine. I was an assistant, so I also did and her late husband, John F. Kennedy, a former President some studio photography. Eventually, I of the United States.”7 photographed celebrities. Typically, I shot celebrities at night because I wanted to The court granted summary judgment for Galella’s develop the fi lm for a contact sheet in the claim “on the ground that no triable issue of fact existed morning. Then, you pitch the magazine as to whether the Agents were acting within the scope of their employment as Government agents and so were im- editors. In those days, there were not as 8 many markets for the photos as today. Of mune from suit as a matter of law.” Onassis did not enjoy similar success, though. The court denied her motions for course, if the celebrity you target does not 9 go out that particular night, you might summary judgment on her complaint and counterclaim. not have a photo to sell in the morning.4 On October 8, 1971, the court signed a Temporary Galella’s entrepreneurial spirit piggy-backed on his Restraining Order against Galella for actions occurring artistic dedication. From 1967 to 1970, he set up a Santa earlier in the month. “The application was based largely Claus photo concession at a Bronx outlet for the now- upon the tennis incident of October 4, 1971 and the residence episode of October 5, 1971…alleging continued defunct Great Eastern supermarket chain. He had 1400 10 customers and made approximately $8,000 a week. harassment, surveillance and fear.” Taking standard photos and portraits provides steady, The court set boundaries for Galella two months later. if not lucrative, income. Yet Galella had a deeper desire to On December 2, 1971 the fi rm of Paul, recreate celebrities’ beauty on photographs. Weiss, Rifkind, Wharton & Garrison, sub- In 1967, Galella got his fi rst tangible taste of Jackie stituted as counsel for defendant, brought Onassis’ allure as a photographic subject. He sold a pho- on an order to show cause, coupled with tograph of the former First Lady to Newsweek. “It encour- a temporary restraining order, to punish aged me to do more.” says Galella. the plaintiff for contempt of the October 8, 1971 order. This order based upon the “Encouraged” is an understatement. Galella refused alleged surveillance of defendant and her to be sated, stopped, or sidelined in his quest to encapsu- children, was signed on December 2, 1971 late a sliver of a Jackie Onassis moment. There was only and provided in essence that plaintiff and one force that had a chance. his agents cease surveillance and following, remain at least 100 yards from the The American legal system. home and 50 yards from the person of Mrs. Onassis and her children (200 yards Galella v. Onassis, Part 1 and 100 yards respectively were request- Galella launched the fi rst shot, fi ling a lawsuit against ed), and that plaintiff be enjoined from Onassis and three of her Secret Service agents for $1.3 communicating or attempting to commu- 11 dollars in the fall of 1970. Galella claimed that he suffered nicate with them. false arrest and malicious prosecution in addition to “in- A judge heard the case. Neither side fi led a jury terference with his business by the alleged acts of defen- demand before the deadline, though Galella made an dant Onassis in resisting his efforts to photograph her, attempt well after. “On January 25, 1972, over nine (9) and by the alleged acts of defendant Agents in obstruct-

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 161 months late, plaintiff fi led a jury demand. By law we had his fl ash as the children were alighting. John Kennedy no alternative but to strike it as worthless.”12 was startled, he fell to his knees, his books scattered in the street. As defendant and her children were walking to Alfred Julien, Galella’s attorney, also claimed judicial the entrance, plaintiff and the other two photographers bias. Julien told Judge Irving Ben Cooper, who was as- continued rushing back and forth in front of Mrs. Onassis signed to the case, that “he was contemplating an applica- while taking fl ash photographs from both the north and tion to have another judge preside at trial on the ground south sides of the canopy.”19 that having been nominated by President Kennedy, we could not render an unbiased judgment.”13 Galella’s pursuit continued a few days later as Onas- sis went to dinner and a theatrical performance of Two Julien never fi led the appropriate legal papers to seek Gentlemen of Verona. Among his actions that night, Galella the judge’s removal from the case. “Plaintiff deliberately documented Onassis when the play stopped for patrons waived any claim of bias. It ill-behooved Mr. Julien to go to get a drink, go to the bathroom, or get a breath of fresh around the back way to accomplish what he failed to at- air outside the theatre. “During intermission, plaintiff tempt directly. Nevertheless, several times throughout the again came down the aisle pushing people out of his way trial, he screamed ‘mistrial, you are biased’ at the judge 14 in order to reach and photograph defendant. As the Onas- presiding.” sis party proceeded up the aisle, plaintiff photographed From February 16th to March 23, 1972, the trial took them. This plaintiff admitted. He pressed so close to Mrs. place while President Nixon visited China, the Environ- [Peter] Duchin and [Michael] Forrestal as to come within mental Protection Agency called for unleaded gasoline eighteen inches of Mrs. Onassis. In the lobby they were at all gas stations, and race relations found humor as surrounded by him and his associates. Galella leapt from Sammy Davis, Jr. gave Archie Bunker a kiss on the cheek. side to side and knocked people about.”20 Galella’s behavior before the court’s restraining The court considered several other incidents involv- orders fell under consideration. For example, Galella ing Galella. Where Galella advocates claimed exuberance, spied on Onassis at a private dinner party in a Manhat- the court saw harassment. It considered Galella’s First tan restaurant in February 1969. “Plaintiff testifi ed he had Amendment claims by discussing the potential of prior learned of her presence and secreted himself behind a restraint for photojournalists. “Any injunction which coat rack in the restaurant. He had arranged with restau- would absolutely or effectively prevent plaintiff from rant personnel to turn up the music loud enough to dead- photographing Mrs. Onassis or her children would raise a en the sound of his clicking camera. While stationed at problem of prior restraint.”21 that spot he took at least fi ve or six dozen photographs.”15 Thus, the court analyzed the reach of Galella’s First The aforementioned tennis incident took place at the Amendment rights. As the First Amendment is not a Central Park tennis courts when Caroline Kennedy had a blanket absolution for any actions involving the media, tennis lesson while her mother watched. Onassis testifi ed the court reasoned that Galella’s actions trumped First about Galella’s effect on Caroline, then just a few weeks Amendment rights. shy of turning 14. “Agent Walsh said to Galella, ‘Can’t Galella asserts that the First Amendment you see you’re making her nervous?’ Galella then yelled is a complete defense to the counterclaim to Caroline, ‘I’m not making you nervous, am I, honey?’ and intervenor complaint. We reject this And she said, ‘Yes, you are.’ She turned towards me and 16 contention; it is unsupported by legal there were tears in her eyes.” authority. After that comment, Galella’s pursuit was no longer The proposition that the First Amend- hidden, but obvious. “He rushed up the stairs of the ten- ment gives the press wide liberty to nis house. He was leaping around inside and he knocked engage in any sort of conduct, no matter over a trash can. He bumped into Caroline, bumping how offensive, in gathering news has her against the wall. He caused a great commotion and been fl atly rejected.22 we were upset.”17 Galella admitted to knocking over the trash can, but claimed that it was an accident and not The court relied on Tribune Review Publishing Co. v. from “violent bumping about.”18 Thomas in its analysis of Galella’s actions. The Tribune court upheld a denial of an injunction barring photogra- The previously mentioned residence incident took phers from certain courthouse areas. “We think that this place on November 28, 1971. After Onassis arrived home question of getting at what one wants to know, either to from a “brief holiday” with her two children at night, inform the public or to satisfy one’s individual curiosity Galella hid around the corner of her apartment building is a far cry from the type of freedom of expression, com- while two photographer cohorts hid in a nearby van. “As ment, criticism so fully protected by the fi rst and four- defendant and her children were getting out of the car, teenth amendments to the Constitution.”23 plaintiff lunged from under the canopy and discharged

162 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 Additionally, the court relied on Dietemann v. Time, body or asked another to stand in front of her, plaintiff Inc. for its reasoning that publication may enhance dam- has no right of action even though what she purposely ages. “A rule forbidding the use of publication as an did may have ‘interfered’ with his photographing her. A ingredient of damages would deny to the injured plaintiff photographer cannot direct an unwilling subject to pose, recovery for real harm done to him without any counter- to wear only clothing which he dictates, or to perform ac- vailing benefi t to the legitimate interest of the public in cording to his requirements any more than one without a being informed. The same rule would encourage conduct camera could do so.”29 by news media that grossly offends ordinary men.”24 Further, the court found that Galella violated its tem- Galella’s argument on First Amendment grounds porary restraining order during the events of November failed. “We conclude that the First Amendment does not 28, 1971 and December 1, 1971.30 It set boundary restric- license Galella to trespass inside private buildings, such tions for Galella and anyone working with him to: as the children’s schools, lobbies of friends’ apartment buildings and restaurants. Nor does that Amendment • 100 yards of Onassis’ home command that Galella be permitted to romance maids, • 100 yards of the schools attended by John and Caro- bribe employees and maintain surveillance in order to line Kennedy monitor defendant’s leaving, entering and living inside her own home.”25 • 75 yards from the children at all other places and times Onassis’ position as a “public fi gure”—perhaps the personifi cation of that phrase—mattered not for a First • 50 yards from Onassis at all other places and 31 Amendment analysis by Judge Cooper: “In any event, we times said at trial, and now repeat, that she is a public fi gure. Additionally, the court enjoined Galella from con- Nevertheless, the First Amendment does not immunize ducting surveillance on Onassis or the Kennedy children, all conduct designed to gather information about or pho- using Onassis’ photograph for commercial purposes— tographs of a public fi gure. There is no general constitu- advertising or trade—without Onassis’ consent, and tional right to assault, harass, or unceasingly shadow or communicating with or attempting to communicate with 26 distress public fi gures.” Onassis or her children.32 While First Amendment advocates may shiver at the notion of a court deciding what is newsworthy under a Galella vs. Onassis, Part 2 public fi gure paradigm, the court in Galella acknowledged Galella appealed to the United States Court of Ap- the tension. “It might be argued that the Court should not peals in the Second Circuit. Circuit Judge J. Joseph Smith place itself in the position of drawing lines and of weigh- wrote the court’s opinion. ing the value of various communications so as to deny to some of them, under certain circumstances, the protection First, the court upheld the District Court’s summary of the First Amendment. But that is what courts are for. judgment grant and dismissal of Galella’s claim concern- They have not shrunk in the past from deciding whether ing the Secret Service agents.33 a given individual was a ‘public fi gure.’”27 If an offi cer is acting within his role as Regarding the emotional distress argument, the court a government offi cer his conduct is at validated Onassis’ version of events. “We fi nd that the least within the outer perimeter of his totality of plaintiff’s conduct was extreme, intentional and authority. The Secret Service agents were outrageous, and that the emotional distress experienced charged under 18 U.S.C. § 3056 with by defendant and her children was severe and reasonably “guarding against and preventing any so. The record demonstrates there is substantial basis for activity by any individual which could their reactions and concerns; they were indeed harassed, create a risk to the safety and well being threatened and denied privacy by plaintiff’s offensive of the…children or result in their physical conduct. The proof establishes the tortious infl iction of injury.” It was undisputed that the agents mental distress.”28 were on duty at the time, and there was evidence that they believed John Kenne- Onassis also won the legal argument concerning dy to be endangered by Galella’s actions. Galella’s claim of her interference with his photography Unquestionably the agents were acting profession. Galella, according to the court, suffered no within the scope of their authority.34 damages by Onassis dodging, avoiding, or otherwise es- caping Galella’s vantage point. “If, while walking on the Intrusion, a key factor in the balancing between First street, Mrs. Onassis chose to shield herself from plaintiff Amendment rights and privacy rights, fell under the by putting on sun glasses or a veil, plaintiff suffered no appellate court’s scrutiny. While Galella enjoyed First actionable wrong. If instead, she walked behind some- Amendment protection, he failed again to convince a

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 163 judge that the protection extended to his methods despite or any touching of the person of the defendant Jacqueline Onassis’ celebrity. Onassis; (2) any blocking of her movement in public places and thoroughfares; (3) any act foreseeably or reason- Of course legitimate countervailing social ably calculated to place the life and safety of defendant in needs may warrant some intrusion de- jeopardy; and (4) any conduct which would reasonably be spite an individual’s reasonable expecta- foreseen to harass, alarm or frighten the defendant.”38 tion of privacy and freedom from harassment. However the interference allowed The court did, however, uphold the injunctive relief may be no greater than that necessary concerning the Secret Service protection of Onassis’ to protect the overriding public interest. children “modifi ed to prohibit any action interfering with Mrs. Onassis was properly found to be Secret Service agents’ protective duties. Galella thus may a public fi gure and thus subject to news be enjoined from (a) entering the children’s schools or coverage. Nonetheless, Galella’s action play areas; (b) engaging in action calculated or reasonably went far beyond the reasonable bounds foreseen to place the children’s safety or well being in of news gathering. When weighed jeopardy, which would threaten or create physical injury; against the de minimis public importance (c) taking any action which could reasonably be foreseen of the daily activities of the defendant, to harass, alarm, or frighten the children; and (d) from ap- Galella’s constant surveillance, his proaching within thirty (30) feet of the children.”39 obtrusive and intruding presence, was Onassis requested a rehearing en banc—a rehearing unwarranted and unreasonable. If there before all judges of a court rather than the judges as- were any doubt in our minds, Galella’s signed to the case previously litigated. The Court of Ap- inexcusable conduct toward defendant’s peals denied the request. minor children would resolve it.35 It also remanded to the District Court for “modifi ca- Further, regarding the tortious conduct claims of tion of the judgment.”40 Onassis, the Court of Appeals clarifi ed Galella’s argument, or lack thereof. Galella vs. Onassis, Part 3 Galella does not seriously dispute the court’s fi nding of tortious conduct. Rather, he sets up the First Amend- On January 8, 1975, the District Court entered a judgment as a wall of immunity protecting newsmen from any ment permanently enjoining certain actions of Galella: liability for their conduct while gathering news. There is • approaching Onassis within 25 feet; no such scope to the First Amendment right. Crimes and torts committed in news gathering are not protected.36 • touching Onassis; The court also upheld Judge Cooper’s decision to • blocking Onassis’ movement in public places or hear the case at the District Court rather than offer re- thoroughfares; cusal. Galella’s argument failed because of the statutory • performing any act that is foreseeably or reasonably requirements attached to judicial recusal upon request. calculated to put Onassis’s life or safety in jeop- A judge may be disqualifi ed for bias only ardy; on motion supported by a written affi da- • engaging in conduct reasonably foreseen to harass, vit of facts supporting the claim of bias alarm or frighten Onassis; and a certifi cate of good faith from the counsel of record. 28 U.S.C. § 144. Galella • entering a school or play area of the Kennedy chil- failed to comply with the statute; no dren; showing was made of a legal basis for the claim, no motion was made nor affi davit • engaging in conduct calculated or reasonably to be fi led. Informal requests to the court, or foreseen as putting the safety or well-being of either failure to comply with the stature because of the Kennedy children in jeopardy, or engaging in of an expectation of denial, however well conduct which would frighten either of the Ken- founded, cannot be substituted for com- nedy children or cause injury to either of them; 37 pliance with § 144. • taking action which could reasonably be foreseen Despite the Court of Appeals upholding the District to harass, alarm or frighten either of the Kennedy Court’s legal analysis, it modifi ed the injunctive mandate children; of distances between Galella and Onassis. Indeed, the • approaching either of the Kennedy children within modifi cation lessened the distance that Galella need to 30 feet; and keep. “[W]e modify the court’s order to prohibit only (1) any approach within twenty-fi ve (25) feet of defendant

164 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 • interfering with the protective duties of the United The fourth incident took place at the Winter Garden States Secret Service regarding the protection of Theatre, located at Broadway and 51st Street in Manhat- John F. Kennedy, Jr. 41 tan where Onassis attended a performance of The Cath- erine Wheel with friends. Galella’s testimony about his Onassis sought redress in the United States District proximity to Onassis undercut his credibility with the Court in the early 1980s, which again fell under the aegis court. It lacked specifi city. “What is particularly striking of Judge Cooper, claiming that Galella violated the 25-feet about Galella’s testimony on this episode is his marked, boundary in four incidents occurring in 1981. studied failure to even mention or refer to the distances The fi rst incident took place at the Hollywood Twin between himself and Mrs. Onassis at various times—as Theatre on Eighth Avenue near 47th Street in midtown though that vital factual issue was of no consequence.”46 Manhattan. Onassis went to the theatre for an afternoon Judge Cooper ruled that Galella violated the restrain- showing of the fi lm Death in Venice. Thanks to a tip from ing order in all four incidents, his presence breaking the the theatre manager to the New York Post Galella discov- mandated 25-feet boundary. He took notice of the court’s ered Onassis’ attendance in the theatre.42 power, a highly signifi cant cog in the judicial machine. “It Galella’s presence, therefore, was neither accidental is unthinkable that the court is without absolute power nor cosmic. It was, indeed, purposeful. He wanted a valu- to enforce compliance with its orders. The court is duty able vantage point to capture Jackie’s egress. bound to defend its integrity against those who defy its authority.”47 This is not a situation where a coinci- dental meeting occurred. Rather, Galella In March 1982, the respective law fi rms of Onassis intentionally went to this theatre; his and Galella signed a Consent Order and Judgment for jumping and leaping, combined with his the United States District Court, Southern District of New “making those scary grunting noises… York. The Consent Order forced Galella to pay $10,000 to very rapid low noise like an animal,” pro- Onassis and her daughter, Caroline Kennedy. In addition, duced the only foreseeable conclusion. it mandated that Galella give them “all negatives, trans- His arrogant persistency, compounded by parencies and photographic prints which he or others act- each step he took, only added to the ha- ing with him have taken or made of Jacqueline Onassis, rassment, alarm and fear clearly instilled Caroline Kennedy and John F. Kennedy, Jr. in violation in his subject well before the incident was of the January 8, 1975 order, only those which were the over.43 subject of this contempt proceeding.”48 The second incident took place at Menemsha Pond in Martha’s Vineyard. When Onassis went on her boat with Moments Are Fleeting…Photographs Are Forever a friend, Galella followed in another boat with a driver. Ron Galella obtained fame as the fi rst American paparazzi because of his relentless pursuit of Jacqueline Galella’s contention that he only sought Bouvier Kennedy Onassis. newsworthy photographs purposely misconstrues the fundamental purpose Rather than temper stories about his pursuit of Onas- of our order. We did not preclude Galella sis, Galella revels in it. He is working on his latest book, from pursuing this photographic subject; Jackie: My Obsession, which will consist of approximately we limited the distance and manner in 400 photographs, some never before seen. The cover, of which he may proceed to do so. We did course, is Galella’s famous mid-stride shot of Onassis. our utmost to strike a balance between the rights of Galella and Mrs. Onassis.44 For those who rooted for Galella to leave Onassis alone, they kept images in their mind’s eye of a First Lady The third incident took place at Moshup Trail in turned international icon that redefi ned grace, glamour, Martha’s Vineyard. This incident concerned Caroline and elegance. Odds are that the images were born from Kennedy riding her bicycle on the trail. Based on the Galella’s photographs. testimony of Ms. Kennedy and Galella, the court found the former’s to be credible. “Galella forced Ms. Kennedy Endnotes over to the side of the road onto a sandy section where a bicyclist could easily fall; he blocked her path in the lane 1. Interview with Ron Galella (October 25, 2011). in which she was traveling; he caused her to swerve into a 2. Id. lane of on-coming traffi c. We fi nd he fully intended by his 3. Id. conduct to accomplish the results which ensued.”45 4. Id. 5. Galella v. Onassis, 353 F.Supp. 196, 199 (S.D.N.Y. 1972). Those results were photographs of America’s most famous daughter. Injury, physical or otherwise, was never 6. Id. a goal of Galella’s.

NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 165 7. Id. 38. Id. at 998. 8. Id. at 199-200. 39. Id. at 999. 9. Id. at 200. 40. Id. 10. Id. 41. Galella, 533 F.Supp at 1083, quoting Order, United States District 11. Id. at 201. Court, January 8, 1975. A contact at the newspaper alerted Galella. 12. Id. at 202. 42. Id. at 1086. 13. Id. at 203. 43. Id. at 1089. 14. Id. 44. Id. at 1092. 15. Id. at 207. 45. Id. at 1096. 16. Id. at 209-210. 46. Id. at 1102. 17. Id. at 209. 47. Id. at 1105. 18. Id., n.25. 48. Consent Order and Judgment, 70 Civ. 4348 (S.D.N.Y. 1982). 19. Id. at 211. David Krell is the author of Blue Magic: The Brook- 20. Id at 211-212. Michael Forrestal was Onassis’ escort for the evening. lyn Dodgers, Ebbets Field, and the Battle for Baseball’s Mr. and Mrs. Peter Duchin were guests of Forrestal and Onassis. Soul. Publication in 2014 is expected. David has spoken 21. Id. at 220. at the Society for American Baseball Research’s Freder- 22. Id. ick Ivor-Campbell 19th Century Baseball Conference, 23. Id. quoting Tribune Review Publishing Co. v. Thomas, 254 F.2d National Baseball Hall of Fame’s Annual Cooperstown 883, 885 (3d Cir. 1958). Symposium on Baseball and American Culture, New 24. Id. at 222 quoting Dietemann v. Time, Inc., 284 F.Supp. 925 (C.D. York Mets 50th Anniversary Conference, Society for Cal. 1968), aff’d, 449 F.2d 245, 250 (9th Cir. 1971). American Baseball Research’s Jerry Malloy Negro 25. Id. at 222. Leagues Conference, and the Mid-Atlantic Nostalgia 26. Id. at 223. Convention. David is a featured guest on the podcast 27. Id. at 225. Dishing Up the Dodgers where he talks about the his- 28. Id. at 231. tory of the Dodgers baseball team. Additionally, he has 29. Id. at 234. written for the Dodgers-themed web site Lasordaslair. 30. Id. at 238. com, the publishing industry web site publishingper- spectives.com, and magazines including Patriots of the 31. Id. at 241. American Revolution, Mi Patente, and Filmfax. David 32. Id. is the Co-Editor of the New York State Bar Associa- 33. Galella v. Onassis, 487 F.2d 986, 993. tion’s sports law book In the Arena. Publication in 2013 34. Id. is expected. David is a member of the bar in New York, 35. Id. at 995. New Jersey, and Pennsylvania. His web site is www. 36. Id. davidkrell.com. 37. Id. at 997.

166 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2013 | Vol. 24 | No. 1 President Kennedy’s Televised Address to the Nation

Cuban Missile Crisis

October 22, 1962

Good evening, my fellow citizens:

[BACKGROUND]

This Government, as promised, has maintained the closest surveillance of the

Soviet military buildup on the island of Cuba. Within the past week, unmistakable evidence has established the fact that a series of offensive missile sites is now in preparation on that imprisoned island. The purpose of these bases can be none other than to provide a nuclear strike capability against the Western Hemisphere.

Upon receiving the first preliminary hard information of this nature last Tuesday morning at 9 A.M., I directed that our surveillance be stepped up. And having now confirmed and completed our evaluation of the evidence and our decision on a course of action, this Government feels obliged to report this new crisis to you in fullest detail.

The characteristics of these new missile sites indicate two distinct types of installations. Several of them include medium range ballistic missiles, capable of carrying a nuclear warhead for a distance of more than 1,000 nautical miles. Each of these missiles, in short, is capable of striking Washington, D. C., the Panama

Canal, Cape Canaveral, Mexico City, or any other city in the southeastern part of the United States, in Central America, or in the Caribbean area.

Additional sites not yet completed appear to be designed for intermediate range ballistic missiles -- capable of traveling more than twice as far -- and thus capable of striking most of the major cities in the Western Hemisphere, ranging as far north as Hudson Bay, Canada, and as far south as Lima, Peru. In addition, jet bombers, capable of carrying nuclear weapons, are now being uncrated and assembled in Cuba, while the necessary air bases are being prepared.

This urgent transformation of Cuba into an important strategic base -- by the presence of these large, long-range, and clearly offensive weapons of sudden mass destruction -- constitutes an explicit threat to the peace and security of all the

Americas, in flagrant and deliberate defiance of the Rio Pact of 1947, the traditions of this nation and hemisphere, the joint resolution of the 87th Congress, the Charter

2 of the United Nations, and my own public warnings to the Soviets on September 4 and 13. This action also contradicts the repeated assurances of Soviet spokesmen, both publicly and privately delivered, that the arms buildup in Cuba would retain its original defensive character, and that the Soviet Union had no need or desire to station strategic missiles on the territory of any other nation.

The size of this undertaking makes clear that it has been planned for some months.

Yet, only last month, after I had made clear the distinction between any introduction of ground-to-ground missiles and the existence of defensive antiaircraft missiles, the Soviet Government publicly stated on September 11 that, and I quote, "the armaments and military equipment sent to Cuba are designed exclusively for defensive purposes," that there is, and I quote the Soviet

Government, "there is no need for the Soviet Government to shift its weapons for a retaliatory blow to any other country, for instance Cuba," and that, and I quote their government, "the Soviet Union has so powerful rockets to carry these nuclear warheads that there is no need to search for sites for them beyond the boundaries of the Soviet Union."

That statement was false.

Only last Thursday, as evidence of this rapid offensive buildup was already in my hand, Soviet Foreign Minister Gromyko told me in my office that he was instructed to make it clear once again, as he said his government had already done, that Soviet assistance to Cuba, and I quote, "pursued solely the purpose of contributing to the defense capabilities of Cuba," that, and I quote him, "training by

Soviet specialists of Cuban nationals in handling defensive armaments was by no means offensive, and if it were otherwise," Mr. Gromyko went on, "the Soviet

Government would never become involved in rendering such assistance."

That statement also was false.

[IMPACT]

Neither the United States of America nor the world community of nations can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.

For many years, both the Soviet Union and the United States, recognizing this fact, have deployed strategic nuclear weapons with great care, never upsetting the precarious status quo which insured that these weapons would not be used in the absence of some vital challenge.

Our own strategic missiles have never been transferred to the territory of any other nation under a cloak of secrecy and deception; and our history -- unlike that of the

Soviets since the end of World War II -- demonstrates that we have no desire to dominate or conquer any other nation or impose our system upon its people.

Nevertheless, American citizens have become adjusted to living daily on the bull's-eye of Soviet missiles located inside the U.S.S.R. or in submarines.

In that sense, missiles in Cuba add to an already clear and present danger -- although it should be noted the nations of Latin America have never previously been subjected to a potential nuclear threat. But this secret, swift, extraordinary buildup of Communist missiles -- in an area well known to have a special and historical relationship to the United States and the nations of the Western

Hemisphere, in violation of Soviet assurances, and in defiance of American and

5 hemispheric policy -- this sudden, clandestine decision to station strategic weapons for the first time outside of Soviet soil -- is a deliberately provocative and unjustified change in the status quo which cannot be accepted by this country, if our courage and our commitments are ever to be trusted again by either friend or foe.

[HISTORICAL CONNECTION]

The 1930's taught us a clear lesson: aggressive conduct, if allowed to go unchecked and unchallenged, ultimately leads to war. This nation is opposed to war. We are also true to our word. Our unswerving objective, therefore, must be to prevent the use of these missiles against this or any other country, and to secure their withdrawal or elimination from the Western Hemisphere.

Our policy has been one of patience and restraint, as befits a peaceful and powerful nation which leads a worldwide alliance. We have been determined not to be diverted from our central concerns by mere irritants and fanatics. But now further action is required, and it is under way; and these actions may only be the beginning. We will not prematurely or unnecessarily risk the costs of worldwide nuclear war in which even the fruits of victory would be ashes in our mouth; but neither will we shrink from that risk at any time it must be faced.

[OUTLINING A RESPONSE]

Acting, therefore, in the defense of our own security and of the entire Western

Hemisphere, and under the authority entrusted to me by the Constitution as endorsed by the Resolution of the Congress, I have directed that the following initial steps be taken immediately:

First: To halt this offensive buildup a strict quarantine on all offensive military equipment under shipment to Cuba is being initiated. All ships of any kind bound for Cuba from whatever nation or port will, if found to contain cargoes of offensive weapons, be turned back. This quarantine will be extended, if needed, to other types of cargo and carriers. We are not at this time, however, denying the necessities of life as the Soviets attempted to do in their Berlin blockade of 1948.

Second: I have directed the continued and increased close surveillance of Cuba and its military buildup. The foreign ministers of the OAS [Organization of American

States], in their communiqué' of October 6, rejected secrecy on such matters in this hemisphere. Should these offensive military preparations continue, thus increasing the threat to the hemisphere, further action will be justified. I have directed the

Armed Forces to prepare for any eventualities; and I trust that in the interest of

7 both the Cuban people and the Soviet technicians at the sites, the hazards to all concerned of continuing this threat will be recognized.

Third: It shall be the policy of this nation to regard any nuclear missile launched from Cuba against any nation in the Western Hemisphere as an attack by the

Soviet Union on the United States, requiring a full retaliatory response upon the

Soviet Union.

Fourth: As a necessary military precaution, I have reinforced our base at

Guantanamo, evacuated today the dependents of our personnel there, and ordered additional military units to be on a standby alert basis.

Fifth: We are calling tonight for an immediate meeting of the Organ[ization] of

Consultation under the Organization of American States, to consider this threat to hemispheric security and to invoke articles 6 and 8 of the Rio Treaty in support of all necessary action. The United Nations Charter allows for regional security arrangements, and the nations of this hemisphere decided long ago against the military presence of outside powers. Our other allies around the world have also been alerted.

8 Sixth: Under the Charter of the United Nations, we are asking tonight that an emergency meeting of the Security Council be convoked without delay to take action against this latest Soviet threat to world peace. Our resolution will call for the prompt dismantling and withdrawal of all offensive weapons in Cuba, under the supervision of U.N. observers, before the quarantine can be lifted.

Seventh and finally: I call upon Chairman Khrushchev to halt and eliminate this clandestine, reckless, and provocative threat to world peace and to stable relations between our two nations. I call upon him further to abandon this course of world domination, and to join in an historic effort to end the perilous arms race and to transform the history of man.

He has an opportunity now to move the world back from the abyss of destruction by returning to his government's own words that it had no need to station missiles outside its own territory, and withdrawing these weapons from Cuba by refraining from any action which will widen or deepen the present crisis, and then by participating in a search for peaceful and permanent solutions.

9 [ALTERNATIVES]

This nation is prepared to present its case against the Soviet threat to peace, and our own proposals for a peaceful world, at any time and in any forum -- in the OAS, in the United Nations, or in any other meeting that could be useful

-- without limiting our freedom of action. We have in the past made strenuous efforts to limit the spread of nuclear weapons. We have proposed the elimination of all arms and military bases in a fair and effective disarmament treaty. We are prepared to discuss new proposals for the removal of tensions on both sides, including the possibilities of a genuinely independent Cuba, free to determine its own destiny. We have no wish to war with the Soviet Union -- for we are a peaceful people who desire to live in peace with all other peoples.

But it is difficult to settle or even discuss these problems in an atmosphere of intimidation. That is why this latest Soviet threat -- or any other threat which is made either independently or in response to our actions this week-- must and will be met with determination. Any hostile move anywhere in the world against the safety and freedom of peoples to whom we are committed, including in particular the brave people of West Berlin, will be met by whatever action is needed.

Finally, I want to say a few words to the captive people of Cuba, to whom this

10 speech is being directly carried by special radio facilities. I speak to you as a friend, as one who knows of your deep attachment to your fatherland, as one who shares your aspirations for liberty and justice for all. And I have watched and the

American people have watched with deep sorrow how your nationalist revolution was betrayed -- and how your fatherland fell under foreign domination.

[REASONING]

Now your leaders are no longer Cuban leaders inspired by Cuban ideals. They are puppets and agents of an international conspiracy which has turned Cuba against your friends and neighbors in the Americas, and turned it into the first Latin

American country to become a target for nuclear war -- the first Latin American country to have these weapons on its soil.

These new weapons are not in your interest. They contribute nothing to your peace and well-being. They can only undermine it. But this country has no wish to cause you to suffer or to impose any system upon you. We know that your lives and land are being used as pawns by those who deny your freedom. Many times in the past, the Cuban people have risen to throw out tyrants who destroyed their liberty.

11 And I have no doubt that most Cubans today look forward to the time when they will be truly free -- free from foreign domination, free to choose their own leaders, free to select their own system, free to own their own land, free to speak and write and worship without fear or degradation. And then shall

Cuba be welcomed back to the society of free nations and to the associations of this hemisphere.

[GOAL]

My fellow citizens, let no one doubt that this is a difficult and dangerous effort on which we have set out. No one can foresee precisely what course it will take or what costs or casualties will be incurred. Many months of sacrifice and self- discipline lie ahead -- months in which both our patience and our will will be tested, months in which many threats and denunciations will keep us aware of our dangers. But the greatest danger of all would be to do nothing.

The path we have chosen for the present is full of hazards, as all paths are; but it is the one most consistent with our character and courage as a nation and our commitments around the world. The cost of freedom is always high, but

Americans have always paid it. And one path we shall never choose, and that is the path of surrender or submission.

Our goal is not the victory of might, but the vindication of right; not peace at the expense of freedom, but both peace and freedom, here in this hemisphere, and, we hope, around the world. God willing, that goal will be achieved.

Thank you and good night.

13 David Krell is a New Jersey native and the author of Our Bums: The Brooklyn Dodgers in History, Memory and Popular Culture. In August, David gave his CLE presentation “Legal Lessons of the Brooklyn Dodgers” to New Jersey ICLE.

David has spoken at the Cooperstown Symposium on American Culture and several Society for American Baseball Research (SABR) Conferences, including the Jerry Malloy Negro Leagues Conference, Frederick Ivor-Campbell 19th Century Baseball Conference, New York City 19th Century Interdisciplinary Symposium, and the SABR Annual Convention. He is also a regular speaker at the Mid-Atlantic Nostalgia Convention in Hunt Valley, Maryland.

David has been published in Memories and Dreams—The Official Magazine of the Baseball Hall of Fame, Base Ball—A Journal of the Early Game, Baseball Research Journal, The National Pastime, and Black Ball—A Negro Leagues Journal. He is a regular writer for the New York State Bar Association’s Entertainment, Arts and Sports Law Journal and The Sports Post web site—sportspost.com.

David has a B.A. from the University of Maryland, a J.D. from Villanova Law School, and an LL.M. In Intellectual Property from Cardozo Law School. David is a member of the bar in New York, New Jersey, and Pennsylvania.

David Krell, Esq. (917) 617-4522

Author: Christmas Movies and the Law (2017) 1962: Baseball, Hollywood, JFK, and the Beginning of America’s Future (2017) Our Bums: The Brooklyn Dodgers in History, Memory and Popular Culture (2015) ______E-Mail — [email protected] Web Site — www.davidkrell.com Facebook — www.facebook.com/davidkrell Twitter — www.twitter.com/davidkrell Linked In — www.linkedin/in/dkrell

McKENZIE BRACKMAN’S MICHAEL KUZAK PUBLISHES FIRST-EVER ANALYSIS OF CALIFORNIA COURT OF APPEALS DECISIONS

Groundbreaking Handbook analyzes California appellate decisions to uncover best practices

March 21, 2017

The inaugural edition of Golden State Legal Publishing’s highly anticipated California Courts of Appeals Handbook—for which McKenzie Brackman partner Michael Kuzak served as Editor-in- Chief—has been released. This invaluable guide helps appellate attorneys navigate the complex cases, rules, and procedures that govern the California Court of Appeals process and marks the very first time that key appellate decisions have been comprehensively analyzed a single reference.

The California Constitution created the Supreme Court to be the only appellate court in the Golden State. Population increase in the 19th century led to an expansion of the tribunal from three to seven judges. Overload forced the judges to offer rulings of “affirmed” or “reversed” without offering an analysis or rationale. California’s second Constitution required judges on the Court to write reasons for every decision. Courts of appeal were created in the California legislature at the beginning of the 20th century. Since its inception, more than 400,000 cases have been filed, and thousands of decisions have been handed down by the more than 1,000 judges on the court.

Under Kuzak’s guidance the book meticulously reviews and analyzes every order from the courts’ inception until late in 2015 and uses them to explain how the Board applies its rules and makes its decisions. To keep up with the courts’ prolific output, Kuzak has also agreed to oversee quarterly revisions to the book, which will be published by Golden State Legal Publishing and made available online at Golden State Legal Publishing’s trial advocacy web site.

Other McKenzie Brackman attorneys and law clerks who helped with the drafting and editing of this California Courts of Appeal Handbook included Leland McKenzie, Douglas Brackman, Jonathan Rollins, Arnold Becker, Grace Van Owen, Stuart Markowitz, Victor Sifuentes, Tommy Mullaney, Daniel Morales, Eli Levinson, and Rosalind Shays.

The first edition of California Courts of Appeal Handbook is available for purchase from Golden State Legal Publishing. Kuzak is a trial lawyer at McKenzie Brackman, which is located in downtown Los Angeles. A seasoned trial lawyer and former Assistant District Attorney, he has been lead counsel in more than 100 litigations during his nearly 10 years with the firm.

About McKenzie Brackman McKenzie Brackman is a leading law firm in Los Angeles with a particular focus on family law, corporate tax law, and litigation. Recognized by Los Angeles Legal Times as one of the most innovative law firms, McKenzie Brackman and its lawyers are highly regarded for their forward- thinking approach, their enthusiasm for collaborating across disciplines and their unsurpassed commercial awareness. For more information, visit www.mblaw.com. McKENZIE BRACKMAN’S MICHAEL KUZAK PUBLISHES GROUNDBREAKING ANALYSIS OF APPELLATE DECISIONS

Former Assistant District Attorney Uncovers Reasoning of California Judges In New Book

(LOS ANGELES) March 21, 2017

Today, Golden State Legal Publishing released its highly anticipated California Courts of Appeals Handbook, edited by McKenzie Brackman partner Michael Kuzak. This invaluable guide helps appellate attorneys navigate the complex cases, rules, and procedures that govern the appellate process in California. It’s the first comprehensive analysis of California’s key appellate decisions.

“I’m proud to be the Editor-in-Chief for this invaluable work,” said Kuzak. “We had the input of leading litigators, current and former judges, and law clerks to reveal insights into the judges’ rationales in their rulings. We covered a range of areas, including admiralty, tax, real estate, filmmaking, trade secrets, computer technology, intellectual property, Indian Affairs, and divorce. This will be a key addition to every lawyer’s library.”

Under Kuzak’s guidance, more than 100 lawyers contributed to the drafting and editing the California Courts of Appeals Handbook. Former and present McKenzie Brackman attorneys included Leland McKenzie, Douglas Brackman, Jonathan Rollins, Arnold Becker, Grace Van Owen, Stuart Markowitz, Victor Sifuentes, Tommy Mullaney, Daniel Morales, Eli Levinson, and Rosalind Shays.

Kuzak will edit quarterly revisions so lawyers will have updated analyses. Purchases of the book in hard copy or as an E-book can be made at Golden State Legal Publishing’s web site www.goldenstatelp.com.

Case overload of the California Supreme Court forced the state legislature to create the California Courts of Appeal at the turn of the 20th century. More than 400,000 cases have been filed in the courts. More than 1,000 judges have served on the appellate bench.

Michael Kuzak is a former Assistant District Attorney for the County of Los Angeles and a litigation attorney at McKenzie Brackman, which is located in downtown Los Angeles. Kuzak has been lead counsel in more than 100 trials and appeals during his nearly 10 years with the firm.

About McKenzie Brackman McKenzie Brackman is a leading law firm in Los Angeles with practices in family law, tax law, corporate law, admiralty law, and litigation. Recognized by Los Angeles Legal Times as one of the most innovative law firms in southern California, McKenzie Brackman has represented Fortune 100 companies, technology start-ups, construction companies, and several corporate and individual clients in the entertainment industry. For more information, visit www.mblaw.com.