Free Benny Kauff (Part Three)by Craig Burley
May 05, 2004
In Part One and Part Two of this series, I related the story of Benny Kauff and his suspension and permanent ban from baseball.
After his ban, Kauff failed to become a cause celebre as some of the Black Sox players have. His story faded from the limelight, even though far less justice was rendered to him than to the Chicago players. Kauff only occasionally re-entered the public eye in his later career; his ban from Beulah Park racetrack (which horse racing expert Kent Williams tells me was a notorious hangout for shady characters) and his exile from Columbus on liquor charges during Prohibition are the only times he reappears in public apart from his lawsuit against the Giants in the late 20s.
Unlike some others unjustly banned, notably Ray Fisher, Kauff didn't have the temperament for coaching at the college level, and scouting jobs were essentially closed to him. As a result, Kauff never gained a consituency pressing for his removal from the Permanently Ineligible list.
Fisher had been banned by Commissioner Kenesaw Mountain Landis in 1921 in an even more egregious miscarriage of justice than Kauff's. Fisher, who was a spitball pitcher, had pitched effectively for the Yankees and then the Reds at the end of the deadball era. After the 1920 season, Fisher decided that at 33, he would not come back for another season at Cincinnati's low salary offer and instead opted to coach at the University of Michigan.
Reds owner Garry Herrmann, who was a dictatorial nutcase, appealed to Landis to put Fisher on the Permanently Ineligible list for "contract jumping." Fisher, a popular player who remained in the game coaching at Michigan, eventually was allowed back into baseball as an instructor and won reinstatement in 1980 through the good offices of a large number of supporters. Kauff, on the other hand, had no such support either within the game or outside of it, and had no public profile either, as players from that era began to be forgotten.
Kauff did retain notoriety among one small element of baseball fans, however. Although Kauff was of German origin, it was widely believed during his playing days that he was Jewish. Why this was so (aside from his ambiguous name) is not clear; perhaps the sterotypes of the time saw his flashy style of play and even flashier lifestyle as somehow indicative.
At any rate, it was no doubt in Kauff's personal interest not to correct this misapprehension, particularly in the light of anti-German sentiment during and after the First World War, and also due to marketing factors in New York City, which has (according to some) thirsted ever since for a star Jewish player.
Following his ban, Kauff's supposed Jewish heritage did not escape the notice of anti-Semites interested in baseball. Along with gambler Arnold Rothstein, Kauff became the bete noire of anti-Semitic writers on baseball, even gaining the vituperation of such prominent proto-Nazis as Henry Ford, who called Kauff a "sport spoiler" in his seminal hate text The International Jew.
Ford also insinuated that Kauff was crooked, linking his name to Rothstein and Abe Attell, who were prominent in the Black Sox scandal. To such men, Kauff's ban was proof positive that the "Jewish Idea" was out to ruin baseball as much as every other facet of American life. Kauff's name could be found at the forefront of such denunciations.
Whether Landis himself took Kauff's purported ethnicity into account when meting out his harsh justice is unknown, and it would be unjust to speculate as such. But what should not be denied is that whatever reasons Landis may have had, an injustice not only in a principled sense, but in a technical sense, was done to Kauff and there is no doubt that he was singled out for special punishment.
The Substantive Case
Landis later assured those enquiring about Kauff's case that his acquittal was a travesty of justice. I have not (unlike Landis) read the trial transcripts, but I find such a statement surprising in light of the commentary of the day in the press, which was quite sympathetic to Kauff and unsurprised when the jury reached a "not guilty" verdict. Even so, however, Kauff's conduct in no way amounted to a breach of the Major-Minor League Rules, which at the time governed players' behavior.
The rule under which Landis eventually banned Kauff was that "any player who participated in a game with or against a club containing a player under such indictment [for conduct detrimental to the good repute of baseball] shall be considered ineligible." (Section 2 of Article 4) Landis referred to Kauff as under indictment for conduct detrimental to the good repute of baseball when he banned him. Therefore, Kauff was banned for participating in a game in which he played.
In Part Two, I indicated that there are two issues which arise from this. First, is that the rule has been misinterpreted on its face. The rule states quite clearly that the indictment had to have been for conduct that was itself detrimental to the good repute of baseball (i.e. the conduct, and not merely the indictment). In other words, "indictment" is set as a standard of proof of the conduct, not a mark of the conduct itself, which must be detrimental to baseball on its own merits. Auto theft, is not such an offense.
The second issue is that under this application of Section 2 of Article 4, every player in the National League and every player in the International League who played with or against Kauff in 1920 was to be "considered ineligible." The rule does not permit of interpretation; it says that all such players are to be considered ineligible. It does not allow the Commissioner's Office or any other party to pick and choose who is to be considered ineligible and who is not.
Kauff was singled out, unfairly, and sentenced to hang on a deliberately misinterpreted technicality.
The Civil Suit
The unkindest cut of all, though, wasn't even from Landis. Rather, it was the decision by Judge Whitaker of Kauff's lawsuit against Landis and the NL. In a contemporary context, Kauff and Fuchs would have had a good case; as a quasi-judicial body, the NL and Commissioner's Office would no doubt have had to grant procedural and natural justice to Kauff. However, Whitaker (and the law of the time) insisted that any claim for Kauff vis-a-vis the NL and Commissioner's Office had to be grounded in the law of contract.
Even then, Whitaker seems to have gotten the case wrong. Whitaker found that, despite the admitted injustice this would do Kauff, he had no claim in contract because Kauff's contract had expired in October of 1921, and that he was therefore too late to sue upon it. Leaving aside the question of the reserve clause, this was a bizarre decision.
The decision by the Commissioner and the NL to ban Kauff occurred well before October of 1921; at the time of the action, there could be no question that their actions were circumscribed by Kauff's player contract. Whitaker seems to have neglected the principle that outside the operation of a limitation period, the locus of the harm (and not of the commencement of a lawsuit) determines whether a party may sue under a contract.
Let's say Ms. A and Mr. B have a contract. Ms. A agrees to supply Mr. B with widgets for an entire year, and then on the last day of the year Mr. B will pay Ms. A $2,000. The contract, they agree, expires at the end of one year. Now let's say that Ms. A faithfully executes her agreement to supply widgets, and then on the last day of the year Mr. B fails to pay the $2,000. If Ms. A sues Mr. B ten days after the year ends, Mr. B can't say in court "ah, but the contract has expired, so you can't sue me." The important queston is not when the lawsuit is filed or argued, but rather when the harm was done. Similarly, if the Giants, the National League, or Landis failed in their duties to Kauff under his contract, then they cannot lie in the weeds (promising a hearing on his appeal, no less) until after the contract expires and then be freed from those duties. Contracts don't work that way.
Kauff was the victim of horrible circumstance in this saga, as the victims of injustice so often are. His case was trumpeted in the courts and the press by a self-promoting (and shady) prosecutor desperate for public attention; he fell afoul of an unscrupulous teammate with nothing to lose, who tried to pin his own crimes on him; his fate eventually rested in the hands of a monomaniacal dictator desperate to show that he was "doing something" about baseball's problems; and he was finally done in by both a legal system stuck behind its time and a judge ignoring a key element of contract law.
In the end, he never had a chance, and his triumphant vindication in criminal court turned out to be as hollow as the Federal League he once dominated.
Why does it matter? I don't think there's a simple answer to this question. Benny Kauff has been dead for more than 40 years. He will certainly never make the Hall of Fame (though he'd be very far from the worst player there). From the point of view of doing substantive good, taking Kauff off the Permanently Ineligible list would have no effect.
But an organization as wide-reaching in its power as Organized Baseball must act with a sense of procedural and natural justice. In keeping Benny Kauff on the banned list, baseball opens itself up to future charges that it does not act in a just and impartial manner in dealing with such matters. That perception of unfairness, where it can be removed, should be removed, to show that the Office of the Commissioner can do justice when dealing with men's livelihoods. Recent decisions, such as the decision to ban Pete Rose, have been conducted with great care for procedural and substantive justice. I hope that this will continue.
I am calling on the Commissioner to show the compassion and high regard for procedural justice that the office has displayed in recent years in cases involving suspensions and eligibility. Mr. Selig, you know the car business. Had you been indicted for (and absolved of) selling a stolen car, and punished for trying to refund the good-faith purchaser's money, you would have thought it an injustice. Please do the cause of justice a favor and take Benny Kauff off of the Permanently Ineligible list.
This article has been fun to write, and a labor of love, but it would not have been possible without the assistance of a large number of people and organizations. Primary thanks are to SABR, whose subscription to ProQuest made this article possible. Without easy access to the contemporary accounts, I'd have nothing.
If I may, I'd like to also recommend the superb article on Kauff written by David Jones in the recent SABR publication Deadball Stars of the National League. The piece on Kauff is of the same high quality as the rest of the book, which is superb. I received my copy of Deadball Stars just as I was finishing Part One of this series, and was pleased to see Kauff get such a fair and thoughtful treatment.
I would like to thank many others who have helped with this piece in one way or another, in no particular order: Kent Williams, Aaron Gleeman, Sean Forman, Mark Gado, Jon Daly, Greg Tamer, and my wife Sonya. Thanks. And thanks to all the readers who have stuck with me through three long parts. Your kind messages are much appreciated.
Craig Burley can be contacted via e-mail.
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