Baseball Owners Not Liable for Foul Ball Injury: A person of "ordinary intelligence" understands that a risk of attending a baseball game is that batted balls could enter the fan area. This conclusion is at the heart of a Massachusetts state court decision that held the Red Sox owed no liability to fan injured by a foul ball at Fenway Park in 1998. Ten minutes after arriving at Fenway, the plaintiff was struck with a foul ball, shattering her facial bones and putting her in critical condition. Her medical bills totaled nearly half a million dollars. The plaintiff claimed that the team had a duty to warn spectators of the dangers, and being unfamiliar with baseball, she did not understand the inherent risks of sitting close to the field.



The court disagreed, and held that the Red Sox did not have a duty to warn spectators of an "obvious" risk.

Viewing the present case through the lens of the defendant's duty, we are persuaded that the potential for a foul ball to enter the stands and injure a spectator who is seated in an unscreened area is, as matter of law, sufficiently obvious that the defendant reasonably could conclude that a person of ordinary intelligence would perceive the risk and need no additional warning. Even someone of limited personal experience with the sport of baseball reasonably may be assumed to know that a central feature of the game is that batters will forcefully hit balls that may go astray from their intended direction. We therefore hold that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands.

Because the court held there was no duty, it did not need to address the assumption of risk doctrine or the effectiveness of the disclaimer printed on the back of the ticket. Despite the obvious sympathy for the plaintiff in the case, I believe the court made the correct decision. A spectator approaching within 40 yards of anyone swinging at a moving object should take heed, no matter the setting. Plaintiff most likely felt insulated, as many fans in the stands do, but this should not shift liability onto the team or the stadium.



Of course, one wonders what would have happened in plaintiff had died from the injury (thankfully, she did not). In a similar case from a few years ago, the Columbus Blue Jackets and the NHL paid a $1.2 million settlement to the family of a little girl that was killed by a puck deflected into the stands. One imagines that the law was on the team and league's side, but both parties likely feared the negative publicity of a drawn-out trial and potential jury verdict. Thus, the settlement. The harsh truth is that whether the plaintiff dies often affects the PR of a case, and thus, the outcome.



But, legally speaking, the court got this one right. If anything is to change, it will be due to policy. The judge, in concluding the case, evinced a hope for just such a change:

Perhaps a more gracious approach would be for major league baseball to elect to internalize the costs of unavoidable injuries sustained by fans through no fault of their own.

I am not so certain such a change would be good. In a perfect world, no one would get hurt, but the baseball owners are no more at fault than is a car manufacturer when their product is involved in an accident due to human error. People assume risks everyday, in everything they do. Chance and risk are unfortunately a part of life, and as unfair as it seems, there cannot always be compensation for the victims.

A King's Ransom in Sacramento: Apparently, the city of Sacramento made a rash decision in 1997: loan the city's single professional sports franchise $70 million to help it overcome financial difficulties and remain in the city. In addition, the city made a second loan to the team, to assist it in paying back the first loan. I can only imagine Prof. Sauer's reaction as he reads this. Due to this odd structure, the team has only made a dent in the amount owed, having paid back only $1.5 million of the principal. And, of course, the team now wants more public money for a new downtown arena. At least some officials are hostile to this idea:

"They've been in the arena a number of years and it looks like nothing has been paid on the principal," said Joe Sullivan, president of the Sacramento County Taxpayers Association. "How much has the city really gotten back?"

Certainly not a championship. Repayment of the loan becomes even dicier if a new arena is built, because the agreement has no stipulation for that scenario.

A business task force recently concluded that 15-year-old Arco Arena is obsolete and should be replaced within five years. A small team of prominent developers and business leaders has proposed constructing an arena on the east side of the Downtown Plaza on K Street as a way to revitalize the struggling commercial area.



Although the loan contract addresses what is necessary if the Kings were to move out of the city, it does not specify requirements if the team moves to another arena in Sacramento.



Sullivan, of the taxpayers group, said his members are concerned that if a new arena deal is forged, the old loan will be waived.



"That's a lot of money to forgive," Sullivan said. "That's not the way our tax money should be spent."

This is a fascinating story of contracts, loan agreements, and the desire of local governments to keep professional sports franchises. While I generally believe that professional sports teams and new arenas do help cities' economy and revitalization efforts, this seems a bit much. If the Kings do not pay back this money, the citizens of Sacramento have a legitimate beef, and should use the next election to voice their concerns.



I recommend the entire article.

The End of Hockey For How Long? Now that the Lighting have broken the hearts of Canadians everywhere, the focus shifts to how much longer it will be before another NHL game is played. Many predict that it will be a long time and that hockey will look much different when it returns. Thomas Boswell has an interesting piece on the disaster towards which hockey is moving. As he correctly points out, the labor dispute mirrors that of major league baseball’s 1994 strike, but with one big difference:

Baseball is America's national pastime. Hockey is Canada's national pastime. Yet the NHL is counting on American fans and American dollars to come back to the NHL the way they came back to baseball. What business would take such a bet-the-industry risk? What union would tempt such career suicide for its members?

As Boswell correctly points out, the potential damage for hockey, a sport already hanging by a thread, is great:

Here's the kicker, the wild card, the enormous factor the NHL seems not to have considered. The imminent danger for hockey is that if it does anything as destructive as baseball did in '94-'95, the NHL may lose its status alongside the NFL, MLB and NBA as a major professional team sport.



"Major" is a vague but invaluable distinction conferred in the public mind. Some sports, some events, are major. Some aren't. There's no election, no referendum. Nobody calls to tell you on the day you move from one category to the other. But, over time, it happens. And for years hockey has been slipping back toward "minor." In its most recent TV contract, the NHL accepted terms that were comparable to the Arena Football League.



Once a major sport falls back into the pack of wannabes, it never recovers. Once, prize fighting and horse racing were huge national sports, far bigger than hockey has ever dreamed of being. Does hockey understand that if it shrinks in popularity as much as boxing and horse racing that it will not just be small, it will almost be invisible? Can you say, bowling? Actually, that would be an insult to bowling with its large participant base.

Actually, hockey’s main concern should be NASCAR. As hockey talks about canceling one season or more, NASCAR continues to schedule races is more major markets, including talks of a race track near New York City. NASCAR’s ratings continue to rise, as does attendance and sponsorship numbers. Soon, I predict that NASCAR might even have a viable “minor league,” similar to the Busch series, but with races held on the smaller, more historic NASCAR tracks that are losing races to the big markets. Fans in these areas will still be hungry for racing, even with slightly less talented drivers, and this will only increase NASCAR’s bottom line and mass appeal. By the time hockey gets back, it may be no more than a “has been” in the pantheon of major sports. And the sad part is: no one involved seems to understand this.

Sports and Criminal Trials: Bob Cohn of the Washington Times takes an interesting, if not somewhat apparent, look at the impact of celebrity in the criminal trials of professional athletes.

Perhaps money can't buy happiness. But it can buy good lawyers. Beyond that, there is a widespread perception that because of the fame and adulation they often receive, athletes are afforded special treatment by the legal system.



In many cases, the perception is the reality.



"I think we're a society where everybody is struck by celebrity," said Rich Lapchick, director of the Institute for Diversity and Ethics in Sports at the University of Central Florida. "No matter how thorough the pretrial questioning, there are people who will be dazzled in the courtroom, whether it's O.J. Simpson or Jayson Williams or Kobe Bryant. Maybe their jaws won't be open, but they will be thinking of their athletic feats."

Of course, the arguments made are not unique to sports. Movie stars have the same, if not more, celebrity status than do their sports counterparts. And all wealthy people, including CEOs accused of corporate fraud, Martha Stewart, and politicians, can afford high-priced legal counsel.



Is this right? Even putting aside the celebrity issue, something smells when the level of representation you receive depends on the amount of money in your bank account. What makes an indigent person less worthy of a legal defense than a millionaire? But on the other, we live in a free market, supply and demand, system. Those that can afford the price of the "best" get just that, and the rest of us are left with the services of those we can afford. The same is true in health care, food, cars, and almost anything else you can think of.



"Sports law" is often derided by people that think it is nothing more than athletes being acquitted of criminal charges merely because they are athletes. But, as I hope this blog shows, sports law means much more than that. And, the issue of the well-to-do buying justice is not unique to sports, nor should it be treated as such. So long as we live in a free market society, this practice will continue, for better or for worse.

The Problems of 'Pay-for-Play': The Orlando Sentinel features an article on the NCAA's major problems with a system of compensation for college athletes in 'revenue-producing' sports. The main argument is the same: paying football and basketball players out of those sports' revenues decreases the funding for the many other non-revenue sports.

More on Mike Williams: Former (and perhaps soon to be current) USC wide receiver Mike Williams is taking steps towards seeking reinstatement from the NCAA. Apparently, Williams has more to do than just renounce his agent contacts, since he has taken a trip on a private jet and accepted numerous gifts. The NCAA is now faced with the precarious situation of a player who wants to be back in school but a tough decision that could create a dangerous precedent of receiving compensation but being allowed back in school.



On the other hand, the facts of this case are unique enough that the NCAA could make an exception and not change its tough stance. Mike Williams and USC can only hope that this is the path taken by the NCAA.



Paul Woody has more on the caution this tale should elicit in the future.

Use of 'Victim' Barred at Bryant Trial: Kobe Bryant and the Lakers may have been victims of a devastating Pistons defense (no pity here), but at his criminal trial, his accuser will not be called "victim."

In a ruling made public Monday, state District Judge Terry Ruckriegle said he agreed with Bryant's lawyers that the term implies guilt and should not be used at trial. He said she must be referred to by name; or in jury instructions, where she must be referred to as "person."



"Its use under these circumstances could improperly suggest that a crime had been committed such that the presumption of innocence might be jeopardized," Ruckriegle said.

This is absolutely the correct ruling to make in this situation. Unlike in a murder, or a personal injury case, the exact question in a rape trial is whether or not the accuser was injured at all. As of now, with the presumption of innocence, the accuser is not a "victim" until the state proves its case.



This leads me to wonder, though, what if a civil trial had occurred first? I know that situation is unlikely, but it could happen if the state were to drag its feet or feel it needed more time to gather evidence. Hypothetically, a defendant could be found civilly liable for sexual assault (or whatever the civil equivalent of rape is). In that case, should the accuser be called "victim" at the later criminal trial. On the one hand, a jury has found that the accused was indeed injured, and the defendant was at fault.



However, this finding would be made using the less stringent "preponderance of the evidence" standard, rather than the criminal threshold of "beyond a reasonable doubt." In addition, the presumption of innocence remains in a criminal trial, notwithstanding a finding of civil liability. Finally, the use of the term "victim" almost certainly will have some effect on the ability of the jury to equitably judge the defendant. Thus, while a harder case, it seems prudent to avoid using the term "victim" until after a criminal conviction is rendered.