Archive for Legal

The Not-So-Triumphant Return of Jenrry Mejia

Before Noah Syndergaard and Jacob deGrom, before Steven Matz, the face of the New York Metropolitans’ pitching rebuild was a young fireballer named Jenrry Mejia. When he first arrived in the big leagues in 2010, Mejia had a mid-90s cutter that was compared to Mariano Rivera’s, but it was complemented by a collection of underdeveloped secondary pitches. Over the next couple of years, Mejia refined his arsenal and his command; he broke out in 2013, flashing four average or better pitches (cutter, sinker, changeup, slider) and a real ability to miss bats. In that 2013 season, Mejia struck out 24.1% of hitters while walking just 3.6%, en route to a 65 ERA- and identical 65 FIP-. Mejia quieted any small sample concerns the following year, striking out better than a batter per inning (23.5% overall) and posting a mid-3.00s ERA, FIP, and xFIP across 93.2 innings alternating between the rotation and bullpen — and even recorded 28 saves as the Mets’ closer.

And then it all fell apart. Twice in 2015, Mejia was suspended for the use of performance-enhancing drugs. Although he was his old dominant self between suspensions — recording a 25.9% K, 7.4% BB, 53 FIP-, and 0 ERA- in 7.1 innings — his absence opened the door for the next wave of Mets pitchers, including Jeurys Familia, who supplanted Mejia as the team’s closer in the Mets’ historic run to the World Series. Still, there seemed ample room for for the fireballing Mejia to rejoin the Mets in 2016, either in a setup role or as a starter.

And then, on February 12, 2016, just before spring training was scheduled to begin, Mejia tested positive again. Per MLBTradeRumors:

Mets reliever Jenrry Mejia has been banned permanently from the majors after his third positive PED test, according to a league announcement. Remarkably, Mejia tested positive for the banned substance boldenone after earning two suspensions just last year.

And with that, Mejia became the first player ever banned from the majors on the basis of repeated positive tests, per the terms of the Joint Drug Prevention and Treatment Program. Mejia did not take it well, accusing MLB of a “witch hunt,” saying the league had set him up, calling out the MLBPA for not defending him, and later threatening to sue MLB for his ban.

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Todd Keeling, SunTrust Park, and Workplace Safety

It wasn’t so long ago that building things was a pretty dangerous pastime. The most extreme example of this is probably the Panama Canal; over 5,000 people died in its construction. Five people died erecting the Empire State Building. It’s safer now to construct great buildings; such fatalities are significantly rarer than they used to be. But as we learned last week, the risk inherent to the construction and maintenance of any structure, especially large venues like stadia, will never be zero.

Enter SunTrust Park, the brand new, state-of-the-art venue for the first-place Atlanta Braves. The Braves’ surprising season took a tragic turn on June 26, when workers found a dead body inside a beer cooler at SunTrust. The body was later confirmed to be that of Todd Keeling, a 48-year-old inventor most famous for designing and patenting a technology which dispensed beer at several times the conventional rate. Keeling had already installed his technology in Guaranteed Rate Field and Target Field. Ben Brasch of the Atlanta Journal-Constitution described the technology, called “Draftwell taps,” this way:

The Braves said Monday that the new Draftwell taps installed throughout the ballpark cut down pour times from a 14-second average to five seconds.

Delaware North Sportservice, which manages food and beverage service at SunTrust Park, said the new boozy tech will also keep the beer colder and fresher with more “brewery-intended flavor.”

Target Field in Minneapolis, home of the Twins, installed Draftwell taps and increased its keg yield from 87 to 94 percent, said Delaware North spokesman Marc Heintzman.

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The Story of Hanley Ramirez, the Drug Kingpin Who Never Was

This is the weird story of how Hanley Ramirez, late of the Boston Red Sox, went from unemployed former star to supposed drug kingpin back to unemployed – and unjustly tarnished – former star all in one weekend.

And it’s also a warning about not to jump to conclusions, especially about legal matters.

Once upon a time, Hanley Ramirez was a dynamic shortstop for the then-Florida Marlins. He had power, speed, and youth. Later, he reinvented himself as a middle-of-the-order force for the Dodgers. His tenure with the Red Sox after signing a four-year, $88 million deal was less successful, including a disastrous experiment in left field and culminating in his release earlier this year. Still, he hit 88 homers in a BoSox uniform and remained useful against left-handed pitching. We all expected he would land somewhere in relatively short order, with the Orioles emerging as a frontrunner.

Then all fell silent for a while. At least, until this past weekend.

As with so many things, it all started with a tweet.

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The Other Side of a Roberto Osuna Trade

Friday night, Roberto Osuna became the latest player suspended under the Joint Domestic Violence, Sexual Assault and Child Abuse Policy policy. Per ESPN:

Toronto Blue Jays closer Roberto Osuna was suspended without pay for 75 games on Friday for violating Major League Baseball’s domestic-violence policy, the league announced.

Osuna, 23, has agreed not to appeal the suspension, which is retroactive to May 8 and extends through Aug. 4. He will wind up missing 89 days, which would cost him about $2.54 million of his $5.3 million salary.

Osuna receives the third-longest domestic-violence suspension in MLB history, behind Jose Torres (100 games) and Hector Olivera (82 games). The specific allegations which led to this suspension are still unclear, but we know Osuna was arrested for assaulting his girlfriend, that he has pleaded not guilty to those charges, and that he is presently awaiting trial. Jon Heyman reports that the severity of the penalty was related, in part, to the interview MLB had with Osuna’s girlfriend.

I’ve written before about the problems with MLB’s domestic-violence policy, both generally and in the context of specific players. Osuna’s suspension is yet more evidence of why this policy is flawed. It may seem odd to cite one of the league’s longer domestic-violence suspensions as evidence that the policy isn’t working. A look at the case in context reveals why such a claim makes sense, though.

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One Last Thing About Umpire Videos

It’s pretty rare that we’ll write about something two years after it happens. Baseball is a fickle mistress. Two years after Bryan LaHair was an All-Star, he was playing abroad. A year after Mets went to the World Series, they lost in the Wild Card game, and a year after that, they won 70 games. A lot can change in two years, is the point.

Nevertheless, I’m going to take you down memory lane. To May of 2016, to be precise. The setting is a game between the Mets and Dodgers. Chase Utley is the batter; Noah Syndergaard is the pitcher. And for added emphasis, there’s history here – Chase Utley, you will remember, famously broke Ruben Tejada’s leg during the 2015 National League Division Series.

The next time the Mets faced Utley, all hell broke loose.

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Reggie Bush, Dustin Fowler, and When the Law Goes in a New Direction

Back in April, I examined current A’s center fielder Dustin Fowler’s pending lawsuit against the White Sox, arising from the injury he suffered when he ran into a concealed electrical box whilst running after a fly ball. Fowler filed a negligence suit, which requires that a plaintiff plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.

On Tuesday, retired NFL running back Reggie Bush won a case that, as reader Sean Logue has anticipated, might be relevant to Fowler’s lawsuit. Here’s the pertinent information, per CBSSports’ Sean Wagner-McGough:

Midway through the 2015 NFL season, then-49ers running back Reggie Bush suffered a season-ending knee injury when he slipped on the concrete ring surrounding the field at the Edward Jones Dome, the Rams’ former home in St. Louis. More than two-and-a-half years later, the Rams were found liable for the injury.

On Tuesday, a St. Louis jury ordered the Rams, who now reside in Los Angeles, to pay Bush $4.95 million in compensatory damages and $7.5 million in punitive damages for a grand total of nearly $12.5 million, according to the St. Louis Post-Dispatch. Dan Allmayer, a lawyer for the team, said that they plan to file a motion for a new trial.

Like Fowler has, Bush also sued in negligence. Here’s his complaint. The factual allegations of their cases differ: Fowler ran into a hidden electrical box, while Bush tore his ACL on a “slippery concrete surface” surrounding the playing field. (Here’s video of the injury, for context.) From a legal perspective, however, the lawsuits are remarkably similar. Both allege that the respective defendants had exclusive control over the respective stadia, that the defendants knew about the existence of a hidden dangerous condition, and neither defendant took any steps to warn players.

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Is Major League Baseball’s Domestic Violence Policy Working?

Last week, San Diego Padres left-hander Jose Torres was suspended for 100 games for violating MLB’s Domestic Violence Policy. Torres represents the ninth major leaguer to be investigated under the policy and the seventh to be suspended since the policy took effect at the beginning of the 2016 season, joining Aroldis Chapman, Jose Reyes, Hector Olivera, Jeurys Familia, Derek Norris, and Steven Wright. And that list doesn’t include players like Addison Russell, who was accused of spousal abuse last year in divorce proceedings. Torres, currently on the restricted list, is awaiting trial on “[c]harges of assault with a deadly weapon and criminal damage” stemming from this incident:

According to the probable cause statement contained in the court report, Torres knocked a door off its hinges and punched a hole in another door. He also pointed the gun at the victim, according to the report.\

While MLB’s domestic-violence policy has served to punish offenders, it doesn’t seem to have had any effect on the number of domestic-violence incidents. After five investigations and four suspensions in 2016 – the first full year of the program – there was just one suspension issued in all of 2017. But this year, the numbers are back up, with three investigations and two suspensions already in 2018. And while those numbers may be relatively small, especially compared to PED suspensions, domestic violence is an entirely different animal because it is not, unlike PEDs, what might be termed a “victimless crime.” Domestic violence and domestic abuse have real victims who often suffer real — and often severe — physical and emotional injuries. And those injuries are inflicted on both women and children; children exposed to domestic violence are often scarred for the rest of their lives.

So the question is what, exactly, MLB’s policy is trying to accomplish here. Originally, the idea was that MLB would step into the gap in the criminal law that often protected professional athletes accused of domestic-violence incidents. From a piece by Ken Rosenthal:

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SCOTUS Rejects Appeals in MLB Antitrust Cases

In April, I discussed two then-pending cases before the U.S. Supreme Court challenging Major League Baseball’s long-standing exemption from antitrust law. Since that time, the Court had had the two appeals scheduled for consideration on three occasions, only to reschedule its deliberation each time. Although it wasn’t immediately clear why the Court was repeatedly postponing its consideration of the two appeals, this rather unusual delay raised the possibility that several of the justices were potentially interested in reconsidering baseball’s controversial antitrust exemption.

Despite any possible behind-the-scenes maneuvering, the delay ultimately proved to be for naught, as the Court announced on Monday that it was declining to hear either appeal, effectively ending the two cases. This means that MLB will continue to operate largely outside the scope of federal antitrust law for the foreseeable future.

As is normally the case, the Court did not explain on Monday why it was denying the two appeals. The Court did reveal one piece of potentially relevant information this morning, however, noting that Chief Justice Roberts recused himself from any consideration of the appeal in the Wyckoff v. Office of the Commissioner of Baseball case. It’s not at all clear why Chief Justice Roberts opted not to participate in the Court’s deliberation of the case.

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Are Performance-Enhancing Drugs Illegal?

The use of performance-enhancing drugs (PEDs) is as old as baseball itself. Pud Galvin, a Hall of Famer no less, attempted to inject himself with testosterone extracted from animal testicles, which, eww. Specifically, Galvin’s 1889 cocktail consisted of this:

[S]ubcutaneous injections, of a liquid containing a very small quantity of water mixed with the three following parts: First, blood of the testicular veins; secondly, semen; and thirdly, juice extracted from a testicle, crushed immediately after it has been taken from a dog or a guinea-pig.

Notably, modern science suggests that Galvin’s “beverage” would have had no positive effect whatsoever.

Back in 2003, MLB conducted a series of tests to determine whether players were using PEDs — and, if so, how great the problem was. What happened is now a matter of record: David Ortiz and Alex Rodriguez were among a group of over 100 players who tested positive and the purportedly confidential list got leaked. But as the debate over Ortiz’s Hall of Fame candidacy accelerates in earnest, it’s created a secondary debate over how much that 2003 test should count. As Joe Posnanski notes, the test was supposed to be secret. 

I’m not going to weigh in one way or another on Ortiz’s Hall candidacy; that’s Jay Jaffe’s job, and he does it well. What I am going to do, however, is shed some light on a slightly different but related question: as to those players who used anabolic steroids and other PEDs prior to the current testing and discipline scheme, was doing so illegal?

Let’s start by clarifying one point: MLB banned the use of anabolic steroids back in 1991, so technically anyone using anabolic steroids after that was violating those rules. But as we discussed in the context of footwear, MLB as an organization has to enforce its own rules, or it waives violations. And between 1991 and 2003, MLB didn’t really even test for steroids, so from a legal perspective, its ban probably wasn’t really worth more than the paper it was written on.

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Robinson Cano, Carlos Gomez, and the Illusion of Certainty

Words matter. In the context of the law, they can make all the difference.

They can also matter quite a bit in the context of PEDs and baseball.

Recently, Robinson Cano tested positive not for a steroid but rather for furosemide, a masking agent. This is how it was covered in the media.


A source familiar with the case told ESPN’s T.J. Quinn that Cano tested positive before the season and appealed. During the appeal, MLB apparently was able to determine his intent, which resulted in Cano dropping his appeal, the source said.

TJ Quinn himself:

Robinson Cano suspended for taking furosemide, a diuretic commonly used to mask PED use. It’s the kind of drug a player is likely to say he took by accident and didn’t help his performance. Eager to hear his explanation, because he has access to certified, clean supplements.

USA Today:

The IPA needed proof that Cano was using the drug as a masking agent.

The investigation revealed that Cano had clear intent to mask another illegal drug.

Cano was charged with a positive test, no different than if he were taking anabolic steroids.

That’s a loaded word, “proof.”

I Do Not Think It Means What You Think It Means The Princess Bride GIF - Find & Share on GIPHY

The trouble is that different kinds of proof exist. First, there’s the burden of proof. In other words, whose responsibility is it to prove their case? In civil law, it’s the plaintiff who has the burden of proving its case, and the defense has the burden of proving defenses. But even that is a bit misleading; the defense doesn’t have to prove anything. If the plaintiff doesn’t prove every legally required part of its case, the defense wins even if the defense provides no evidence at all.

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The Impact of the NFL’s Anthem Rule on Baseball

On Wednesday, one of the top stories across the sports world was the National Football League’s institution of a new policy banning players from kneeling in protest during the national anthem.

From ESPN’s Kevin Seifert and Dan Graziano:

 NFL owners have unanimously approved a new national anthem policy that requires players to stand if they are on the field during the performance but gives them the option to remain in the locker room if they prefer, it was announced Wednesday.

The policy subjects teams to a fine if a player or any other team personnel do not show respect for the anthem. That includes any attempt to sit or kneel, as dozens of players have done during the past two seasons to protest racial inequality and police brutality. Those teams also will have the option to fine any team personnel, including players, for the infraction.

A couple of notes here: the policy was unanimous among owners who voted; the San Francisco 49ers abstained from the vote. Also, this policy was evidently something of a compromise; the league was previously throwing around ideas like a 15-yard penalty for kneeling.

The previous policy required players to be on the field for the anthem but said only that they “should” stand. When then-San Francisco 49ers quarterback Colin Kaepernick began kneeling in 2016, the league had no rule it could use to prevent it. The movement drew increasing criticism from President Donald Trump, as well as many fans, who believed it was a sign of disrespect toward the flag and country.

Owners, however, had been divided on how to extricate the league from that criticism. Some owners, including the Dallas Cowboys’ Jerry Jones and the Houston Texans’ Bob McNair, wanted all players to stand. Others, such as the New York Jets’ Christopher Johnson, wanted to avoid any appearance of muzzling players.

Even the seemingly simple option of clearing the field prior to the anthem was rejected by some owners who thought it would be interpreted as a mass protest or at least a sign of disrespect.

But it wasn’t a compromise with the union; the NFLPA said it wasn’t even consulted.

So how does this impact Major League Baseball? More than you might think. There’s actually no rule on the national anthem in MLB right now — there’s not even a rule requiring that it be played at all — which makes baseball unique among the major North American sports. Both the NBA and WNBA require players to stand for the anthem. When asked by Seifert, an MLB spokesman said this:

While this is not a league rule, the playing of the national anthems of the United States and Canada remains an important tradition that has great meaning to our fans. The playing of ‘God Bless America’ at designated games is a club choice.

But the absence of a rule doesn’t mean this isn’t an issue. Orioles center fielder Adam Jones had told USA Today last year that he didn’t expect such a protest to occur — and then, two weeks later, A’s catcher Bruce Maxwell knelt during the national anthem before a game last year.

Maxwell’s decision to kneel came after President Donald Trump — speaking on Friday in Huntsville, Ala., where Maxwell grew up — made reference to NFL players not standing for the anthem as employees who, as he put it, should be fired by their teams. Maxwell, an African-American raised in a military family, joins Colin Kaepernick and other athletes in attempting to raise awareness about brutality and injustice at the hands of authorities by kneeling during the anthem.

Maxwell received relatively little pushback, but then, he was also the first MLB player to kneel during the anthem, at least in the 21st century. He also knelt for just two games, and said himself that his anthem protest wouldn’t continue this season.

So clearly the idea of anthem protests — and a policy banning them — is a controversial one, and the incidents which athletes are protesting continue to occur. It’s also one on which the MLBPA has thus far declined comment. If MLB wanted to create a Rule, like the NFL and NBA, requiring players to stand for the national anthem, could it?

Let’s start by examining some of the more popular tweets from Wednesday.

This is a smattering of the prevailing back-and-forth on Twitter, which seems to focus on whether and how this policy impacts players’ First Amendment rights. However…

Before I continue, please note: I am not saying the NFL is correct or incorrect. What I am saying, however, is that just about every non-lawyer in the twitterverse invoking the First Amendment on this issue — on both sides — is absolutely wrong.

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The Supreme Court, Sports Betting, and the Future

Back in March, I wrote about a pending case before the U.S. Supreme Court concerning the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). PASPA is a federal law which makes sports betting illegal — or, more precisely, requires states to make sports betting illegal. The Supreme Court weighed in on Monday, and we have an answer.

From Justice Alito’s opinion:

The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.

This “anticommandeering” rule is what I mostly addressed back in March. Remember that the United States is, basically, 50 separate sovereign entities (the states) which ceded power to a unifying government (the federal government) for important matters — things like a military, a common currency, social-welfare programs. But the federal government has (in theory, anyway) limits on its power: it can only do what the Constitution says it can do. And the Constitution says that the federal government can’t order the states to pass, or not pass, laws. To the Supreme Court, telling the states they couldn’t legalize sports gambling was a bridge too far.

Perhaps most importantly, however, the Supreme Court went one step farther:

[W]e hold that no provision of PASPA is severable from the provision directly at issue in these cases.

Let me explain that. When the court declares a law unconstitutional, it is, in essence, nullifying that law. That’s a principle that goes back to a 19th-century case called Marbury v. Madison. But nullifying statutes is something courts typically do very reluctantly — and so they try, whenever possible, to separate the acceptable parts of laws from unconstitutional ones. In other words, a law with both a constitutional provision and unconstitutional provision would be split in two, with the unconstitutional part nullified and the other part remaining in effect. That’s called “severing” the law. But by saying PASPA wasn’t severable, the Court decided that all of PASPA is unconstitutional, and so all of PASPA is void. That’s actually a really big deal, because part of PASPA concerned prohibiting the advertising of sports gambling, and now that prohibition is gone.

Naturally, this has caused a variety of reactions.

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Mike Clevinger, Ben Zobrist, and When Shoes Aren’t Just Shoes

Mike Clevinger is a pretty great pitcher. He throws 94 mph. He’s cut his walk rate in half since last year. He’s been the best starter so far this season in one of the league’s best rotations.

Mike Clevinger also has pretty great shoes. They’re designed by by artist Jonathan Hrusovsky. Look at these things.

Ben Zobrist is a pretty great player himself. In his age-37 season, he’s recorded a batting line about 15% better than league average. He still plays multiple positions well. He’s the eighth-best player by WAR over the last decade.

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A Former Yankees Prospect on the Athletics Is Suing the White Sox

Lots of things went right last year in the Yankees’ run to the American League Championship Series.

This wasn’t one of them.

The player you see here is Dustin Fowler, who was making his major-league debut for the Yankees. Fowler, in a haunting echo of Moonlight Graham, never got to bat in that game; he had been due up in the top half of the second. Fowler suffered an open rupture of his patellar tendon on the play and required emergency surgery.

During his recovery, he was traded to the Athletics in the Sonny Gray deal.

How Fowler is expected to develop as a player in the wake of his injury is a worthy line of inquiry; however, it’s not the one I’ll pursue here. Rather, my interest is in the lawsuit that Fowler filed against the White Sox in the wake of his injury — a lawsuit that remains pending.

Fowler’s suit, on the surface, is pretty simple. Fowler has sued two parties — both Chicago White Sox, Ltd. (the limited partnership that owns the White Sox) and the Illinois Sports Facilities Authority (the Illinois government agency that actually owns Guaranteed Rate Field, where the White Sox play). The complaint alleges two counts, one against each Defendant, and sounds in both simple negligence and a peculiar creation of Illinois law known as “willful and wanton conduct.” Essentially, Fowler alleges that, although the wall into which he crashed was padded, an electrical box located there wasn’t.

Here’s the relevant passage:

Let’s start with the obvious question: whither the electrical box? It’s hard to tell from the video. A still image from the above provides some sense, but it’s also easy enough not to notice.

In fact, the Chicago Tribune reported after the game that video seemed to show Fowler missing the exposed electrical box, which is there to provide wifi to fans. Based on that video, the Tribune reported in the same story that no changes would be made to the stadium.

The Tribune, however, appears to have been a bit premature in their reporting. Later image seemed to suggest Fowler did make contact with the electrical box. (You can see the best ones via Newsday here.) The fact that the box is so hard to see — it’s designed to blend in with the wall — is actually part of Fowler’s lawsuit.

So we know the box is there, and that — it appears, at least — Fowler’s knee did impact it. So that leads to the second question: are the White Sox and the ISFA legally responsible?

Last year, Nathaniel Grow took an excellent look at workers’ compensation for professional athletes. Like in many states, Illinois has a law which says that, for the most part, you can’t sue your employer for an injury you suffer on the job. That’s the reason workers’ compensation exists. In Fowler’s case, though, while he is suing for an injury that occurred on the job, he is not suing his employer. As a result, this isn’t a workers’ compensation issue, and Fowler’s negligence claim isn’t barred on that basis.

Michael McCann did a nice run-through of Fowler’s suit back when it was first filed, and I encourage you to read it in full. But negligence law in torts is a lot more complicated than it might seem, and since I’m an Illinois lawyer, I figured I might examine this from a more local perspective. To establish negligence, a plaintiff generally has to plead and prove all of the following:

  1. The existence of a legal duty owed by the defendant to the plaintiff;
  2. The breach of that legal duty by the defendant;
  3. That the breach by the defendant caused an injury to the defendant; and
  4. That the injury is a real and cognizable harm.

Lawyers generally turn these elements into the shorthand of DBCH, which is short for duty, breach, causation, and harm. Illinois follows the traditional negligence standard, with those same four elements: “To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.”

The tricky thing with negligence suits is twofold, though. First, you are basically punishing a defendant for what it did or didn’t do even though those actions weren’t intentional. That means that, every time you find for a plaintiff, you are necessarily saying the defendants have to undertake an obligation to protect people that otherwise wouldn’t exist. That, of course, has real social and economic costs, so courts tend to be wary of pushing the creation and application of legal duties too far. Second, because we’re talking about unintentional conduct here, there are a lot of defenses to negligence that don’t apply anywhere else in the law. These are things like contributory or comparative negligence (sometimes called comparative fault), assumption of the risk, and others which vary by state.

The first question, then, is whether the White Sox and ISFA owed a legal duty towards Fowler. In this case, there are two types of possible duties. (Actually, there are more, but we have limited space here.) There could be a “duty to warn.” That would mean anything from a sign down the right-field line saying “beware of box,” to actually telling Fowler about the box’s existence before the game, to just painting the box a bright shade of yellow so it stands out. On the other hand, there could be a “duty to protect” Fowler, with things like padding on the box or just the complete relocation of the box to somewhere outside the field of play.

Obviously, all of these points relate to the defendants, because the defendants are the ones with control over the box. That doesn’t always happen in negligence cases. What that means, though, is that a court will have to decide whether the law imposes a duty on ISFA and the White Sox either to warn players or protect them from hidden on-field hazards and — if so — how far that duty goes. Many states have accepted what’s called the “Learned Hand Rule” as the gold standard for whether to impose a duty on a defendant. Named for Judge Learned Hand (yes, that really was his name), the Learned Hand Rule uses what’s called “law and economics” to determine whether a duty should be imposed on a defendant. I personally think of the Learned Hand Rule as the “FanGraphs Method” of Negligence. Professor Doug Holden explains why:

This formula lists three factors:

1. Probability of harm (or likelihood of injury) and = P
2. Gravity of harm (or seriousness of injury) as weighed against = L (loss or liability)
3. Burden on defendant (or injury sacrificed) to take adequate precautions = B.

Therefore, if B < P x L, then you have unreasonable behavior. If you have unreasonable behavior, then there is a breach of duty.

This is a useful little algorithm for identifying breach of duty. In practice, however, judges don’t like to sit and calculate such variables like Learned Hand did. So somewhere along the line, the Learned Hand rule went from functioning as a mathematical calculation to serving as a guidepost to then becoming the rule that a party has a duty to all persons who could suffer a “reasonably foreseeable” harm as a result of the former’s actions.

Illinois follows that “reasonably foreseeable” standard. So, in this case, the question is whether it was reasonably foreseeable that a player like Fowler would injure himself on the electrical box. Given that much of the rest of the wall is padded, it’s clearly foreseeable that a player could be injured by colliding with an unpadded wall. By extension, it seems reasonably foreseeable that an unpadded box could also cause harm. Therefore a duty does exist to take adequate precaution. And theoretically, since the burden on the defendant is minimal — like spray-painting the box yellow or a few feet of padding — the Hand formula weighs in favor of Fowler, too.

Next is whether the ISFA and White Sox breached their legal duty to Fowler. To that point, we know they didn’t pad the box. We also have no reason to believe they warned Fowler, either. Of some relevance here perhaps is a doctrine in the law called “res ipsa loquitur.” Res ipsa loquitur basically means that if a defendant exercises exclusive control over an object — like an electrical box — and the object harms someone, the law presumes the defendant was negligent even in the absence of evidence of negligence. Here, I think there is that evidence of negligence, though: the existence of the padding elsewhere. Remember when we discussed protective netting that I explained the “voluntary undertaking doctrine”?

Here’s a refresher:

The Illinois Supreme Court, for example, explained in Nelson v. Union Wire Rope Corp. that, where a company voluntarily does something it wasn’t legally obligated to do, that company is liable for failing to do so reasonably. In some states (like Illinois, for instance), this is known as the voluntary undertaking doctrine.

If the ISFA and White Sox voluntarily undertook to protect fielders by padding the wall but didn’t pad the box, that’s negligence because they failed to complete the job reasonably.

Next are causation and harm. Did the box cause Fowler’s injuries? Well, the impact is what tore his knee open. I could talk about proximate cause and cause-in-fact, but we don’t really need to here. Because the injury was foreseeable and a direct result of an impact with the box, causation’s probably satisfied.

So what defenses do the ISFA and White Sox have? Their primary argument is probably going to be that they didn’t owe Fowler any duty. But in an Illinois court, that’s unlikely to hold water simply because Illinois courts have adopted the reasonable foreseeability standard. And they could argue that Fowler assumed the risk of being injured, but it’s hard to argue that running into things is part of baseball the way being hit by a pitch is. And they can’t argue that Fowler wasn’t injured, because even though he’s back and playing, his injury was very real, which in and of itself entitles him to damages under Illinois law.

So they tried something else. Shortly after Fowler filed his lawsuit, the ISFA and White Sox removed the case to federal court. The White Sox then moved to dismiss the case, arguing that it was preempted by the CBA. The White Sox invoked the Labor Management Relations Act (“LMRA”), a federal law stating (in Section 301) that federal courts, and federal law, govern all employment disputes where the rights of the parties have been collectively bargained. As the White Sox argue, “Plaintiff alleges that he was injured as a result of an incident that took place only because he was employed as a Major League Baseball Player pursuant to a highly regulated contractual employment relationship that specified all of the rights and duties of the respective parties – including with respect to Players health and safety.” Here, the White Sox point to Article XIII of the CBA, which governs players’ safety and health.

Here we return to the issue of “willful and wanton conduct” cited at the outset of this piece. In Illinois, under a case called Ziarko v. Soo Line Railroad, willful and wanton conduct represents something more severe than just negligence, but not so severe as intentional conduct. It’s akin to recklessness. And generally, in Illinois, you can’t disclaim willful and wanton conduct by contract. Moreover, Fowler argues, the CBA doesn’t actually cover situations like this, which means the CBA doesn’t preempt Fowler’s claims.

On that basis, Fowler wants the case sent back to state court.

This is one case where both sides appear to have strong arguments, and there’s ample case law going both ways. I tend to think Fowler has the better of the argument, but I don’t see this as being a clear-cut issue, particularly given the unusual set of facts. Many of the cases cited by both sides, like Stringer v. NFL, concerned situations where the player was injured by or on his own team’s facilities or lack of care. And even there, courts often split the proverbial baby, allowing some claims through and not others. The issue is currently being briefed, and Judge Gary Feinerman will rule sometime in June or July.

Meanwhile, Dustin Fowler hasn’t yet exhibited the form that made him a top prospect when he debuted last June. After a 138 wRC+ last year at Triple-A, he has just a 84 wRC+ for Oakland’s highest affiliate this year through 97 plate appearances. On the plus side, he’s already stolen five bases.

The Supreme Court Might Reconsider MLB’s Antitrust Exemption

Successfully suing Major League Baseball under federal antitrust law is no easy task. Not only does the league typically hire the best legal representation money can buy, but it is also the beneficiary of a unique, judicially-created antitrust exemption generally shielding it from liability under the Sherman Antitrust Act.

Nevertheless, an enterprising plaintiff every so often decides to try his or her luck at convincing a court to set aside baseball’s exemption and hold MLB liable for various, allegedly anticompetitive practices.

These challengers typically hope to overcome baseball’s antitrust exemption in either of two ways. Initially, the plaintiffs usually try to persuade the trial court that the exemption does not apply to whichever of MLB’s business practices is at issue in the case, asserting that the league’s legal protection should instead be narrowly construed.

And — as is the case more often than not — when that strategy fails to work, the plaintiff’s fallback plan is to hope to be able to convince the U.S. Supreme Court to overturn its prior decisions affirming the exemption and instead hold that MLB is no longer immune from legal challenge under the Sherman Act.

Two such cases contesting MLB’s antitrust exemption are currently before the Supreme Court, both of which have been covered here previously at FanGraphs during their earlier stages of litigation.

In the first case, Wyckoff v. Office of the Commissioner, two former scouts have accused MLB teams of illegally colluding to depress the market for the services of professional and amateur scouts. Meanwhile, the second case — Right Field Rooftops v. Chicago Cubs — involves a claim that the Cubs have unlawfully attempted to monopolize the market for watching their games in-person by purchasing a number of the formerly competing rooftop businesses operating across the street from Wrigley Field and also blocking the view of some of the remaining rooftops by installing new, expanded scoreboards.

In each case, the plaintiffs failed to convince the trial court to construe the league’s antitrust immunity narrowly, and now they must hope they can convince the Supreme Court to reconsider the nearly century-old exemption it first created back in 1922.

Unlike most previous challenges to the antitrust exemption, however, the Wyckoff and Rooftop plaintiffs are not necessarily asking the Supreme Court to directly overrule its prior decisions and strip MLB of its antitrust immunity. Instead, the parties are primarily urging the Court to take their respective cases to clarify just how broadly baseball’s exemption ought to apply.

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How the Angels Could Get Out of Paying Albert Pujols

Albert Pujols is signed through 2021 on a 10-year, $240-million deal that is widely considered the worst contract in baseball. In 2011, his last season with St. Louis, Pujols posted a then-career-worst 4.0 WAR. He’s yet to best three-and-a-half wins with the Angels and, last year, was worth negative 1.9 WAR. There’s no doubt the Angels would get out from under this onerous deal if they could.

Yesterday, Meg Rowley held a chat. In said chat, a commenter named Yo-Yo asked this question.

Yo-yo was referring to this article from Baseball Prospectus in which Matthew Trueblood speculates that Albert Pujols is actually 40 and not 38, and thus two years older than he claims. Per Trueblood:

To anyone who followed baseball closely around the time of Pujols’ explosion onto the scene in 2001, this will come as no great surprise. Four of Pujols’ first six player comments in Baseball Prospectus Annuals make reference to the rumored discrepancy between his listed and real ages. Pujols’ age became a topic of some discussion in the run-up to his hitting free agency in 2011, and a panel of experts that included industry-leading writers and front office members alike formed a near consensus that he was older than listed. It’s been several years since the issue has been treated or talked about seriously, but my recent Twitter poll asking respondents how old they think Pujols is (noting that he’s listed at 38) found just 35 percent believed the party line.

Now, Trueblood doesn’t really present anything close to what would be considered real evidence of Pujols having falsified his age, let alone conclusive proof. But the idea of baseball players, particularly from the Dominican, being older than listed isn’t a new phenomenon. Miguel Tejada might be the most famous case, but Hall of Famer Vladimir Guerrero, and lesser known players like Octavio Dotel and Wandy Rodriguez, among others, were, too. Again, that doesn’t mean that Pujols is guilty of doing the same thing, but it does, perhaps, help to explain why those pesky rumors just won’t go away. And, as Trueblood explains, it’s an understandable thing to do for young Dominican players.

Firstly, let’s make sure to say this: I am not accusing Pujols of what I would consider unethical or truly fraudulent behavior. Pujols’ background and early life story are unique, involving living in the Dominican Republic until mid-adolescence, then immigrating to the United States. He and his family were in a difficult position, when they came here in 1996: Pujols would not be eligible to attend American high school, at least in a normal setting, if he were 17 or older. That didn’t just put his baseball future at risk; it threatened his chance to pursue opportunities of all kinds on even footing with his peers.

But Yo-Yo presents a fascinating question. If Pujols were, in fact, two years older than the Angels thought when they signed him, could they use that to get out of their contract with him?

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The CEO of Big League Advance Makes His Case

Last Monday, I wrote on this very site about both the lawsuit Indians uberprospect Francisco Mejia has filed against Big League Advance (“BLA”) and also BLA’s counterclaim. With the rise of branding contracts in professional sports, Mejia’s lawsuit likely represent a harbinger of things to come — rather than an aberration unlikely to be repeated — as a new frontier in sports litigation develops.

Shortly after publishing that piece, I spoke with BLA Chief Executive Officer Michael Schwimer about his company, the Mejia lawsuit, and what the future might hold. Schwimer, it should be noted, was good enough to spend a full hour being grilled by an attorney while simultaneously fathering his two young children, an arrangement most reasonable people would consider to be less than ideal.

Big League Advance

Schwimer himself is a former major-league pitcher, owner of an abbreviated 48-inning career with the Philadelphia Phillies marked by a lot of strikeouts (9.62 K/9) and a lot of walks (4.25 BB/9). After leaving the game, he started Big League Advance. Schwimer said he started BLA because of his own experience in the minor leagues. “I was reffing basketball games [to make ends meet],” Schwimer told me. “I was babysitting.” Schwimer believed there was a better way, and BLA was born.

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Francisco Mejia and the Legal Limits of Brand Contracts

Back in 2016, Phillies third baseman Maikel Franco signed a contract with a company called Fantex. The terms were fairly simple: for a payment of $4.35 million, Franco agreed to pay Fantex 10% of all of his future earnings. Fantex would also be allowed to sell its “share” of Franco to investors, thereby generating additional revenues. Franco and Andrew Heaney were the pioneers, signing “brand” contracts with Fantex back before they were fashionable.

At the time, a friend of mine asked me what I thought of the deal, and I surprised him by panning it. “Just wait for the lawsuit this type of deal will generate,” I said. Evidently, that wait is now over.

On February 21, 2018, Indians catcher (and potentially third baseman and left fielder) of the future Francisco Mejia filed a lawsuit against a company called Big League Advance Fund I, LP. You can read the complaint here, plus BLA’s answer and counterclaim here.

So what is this about? Evidently, Mejia signed three contracts with BLA, which guaranteed him a $360,000 payment in exchange for 10% of his career earnings. If this sounds like Franco’s Fantex deal, you’re mostly right — but Mejia says there were some red flags with BLA which make this contract unconscionable.

According to Mejia’s Complaint,

Defendant BLA’s business plan involves utilizing various “runners” who approach up and coming baseball players in areas such as the Dominican Republic. These runners (usually former baseball players) advise prospects that Defendant BLA will advance them considerable sums of money, to be repaid by a percentage of the player’s future earnings. The prospects are generally young, uneducated and unsophisticated. Few speak English. Most, if not all, come from very modest families who are struggling financially.

According to Mejia, BLA approached him when his mother was very ill and struggling with medical bills. The contracts were signed, says Mejia, without a translator, and BLA even paid for Mejia’s lawyer just so the contract could state Mejia had the advice of counsel. Mejia says that BLA employees showed up at his house unannounced to collect a payment of about $10,000 after Mejia made the big leagues and threatened to bar him from playing if he didn’t pay. And, according to the Complaint, given Mejia is projected to earn over $100 million in the major leagues, BLA stands to recover over $10,000,000 against a $360,000 investment, which Mejia says is unconscionable.

If you’re interested in seeing the contract, it’s available here. That’s the third one Mejia signed — the one that’s the subject of the lawsuit.

So what does “unconscionable” mean, anyway?

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The Marlins Are Claiming to Be British

I love the Miami Marlins. I love them because I love baseball and thinking about baseball. I also love them, though, because I love the law and thinking about the law. At this moment in history, no source is more dependable for simultaneously providing raw material on both fronts — baseball and the law — than the Miami Marlins. Whatever that organization’s flaws, they are not uninteresting.

I’ve written here on multiple occasions about the lawsuit the City of Miami and County of Miami-Dade has filed against Jeffrey Loria for purportedly denying them what they believe they are due of the net proceeds from the $1.2 billion sale of the Miami Marlins to the Derek Jeter/Bruce Sherman ownership group.

Surprisingly, the case now offers a new twist — specifically, the Marlins have suggested that the dispute should be heard by an arbitrator, not state court. And to do that, the Marlins are claiming to be a citizen of… the British Virgin Islands.

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Examining SMT’s Lawsuit Against MLBAM

On Thursday, a company called Sports Media Technology (“SMT”) sued MLB Advanced Media (“MLBAM”) over Statcast. The complaint in the lawsuit is 92 pages long, and I read it so you don’t have to. But if you did want to, here it is.

According to the lawsuit, in 2006, MLB and MLBAM entered into a contract with SMT to develop PITCHf/x. However, according to SMT’s lawsuit, MLBAM then breached that contract, poached at least one key engineer from SMT, then used SMT’s PITCHf/x technology to create Statcast.

According to SMT, Sportvision and MLBAM signed a contract before SMT purchased the company that gave Sportvision exclusive rights to provide use of their PITCHf/xpitch-tracking system for three full MLB seasons. However, SMT now alleges that MLBAM has not only failed to live up to that agreement but they’ve also been working with third parties to emulate that technology. Per SMT, that not only fails to fulfill the contractual obligations of their agreement but also is a misuse of their patented technology.

Now let’s make one thing clear at the outset: the Complaint represents only one side of the story. We don’t know if it’s true or not, and SMT’s case has real problems. We’ll get to those in a second.

Some reports have pegged this as a simple breach-of-contract suit, framing it as SMT suing MLBAM for prematurely terminating the deal in 2016 so as to proceed with developing Statcast. But that’s not really accurate.

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