Friday, July 23, 2004

The Unclear Methodology of Suspensions in MLB: David Ortiz and his Bat Tossing Contest

Major League Baseball has decided that a five-game suspension is warranted for a player who bumps his manager into the home-plate umpire, and who then, upon returning to the dugout after being ejected, throws a handful of bats in the direction of two other umpires, coming within inches of hitting them.  Although I am an avid Red Sox fan (and I watched the particular incident on live television), the suspension for David Ortiz strikes me as woefully insufficient, and an unfortunate reflection of how Major League Baseball determines the severity of its sanctions.  Ortiz is expected to appeal the suspension, which will likely knock off one or two games.

To objectively gauge the appropriateness of the Ortiz suspension, let's briefly consider other recent suspensions in baseball:

  • In 2000, then Red Sox center-fielder Carl Everett purposefully head-butted the home plate umpire, drawing a 10-game suspension.  
  • Earlier this year, Los Angeles Dodgers' center-fielder Milton Bradley received a four-game suspension for deliberately throwing a bag of balls onto the field after being ejected (but, unlike Ortiz, Bradley did not throw the objects in the direction of any umpire, and he did not push his manager into an umpire).
  • More recently, Chicago Cubs' pitcher Victor Zambrano was suspended for five games for intentionally throwing at Jim Edmonds of the St. Louis Cardinals, while Zambrano's teammate, LaTroy Hawkins, was also suspended for three games for inappropriate comments directed at an umpire. 
The most meaningful illustration appears to be that of Bradley.  He received a four-game suspension (which is what Ortiz will likely wind up with after his appeal), even though he neither threw objects at, nor made intervening contact with any umpire.  In light of Bradley's comparatively less-serious conduct, how then can Ortiz receive the same punishment, when he did throw objects at umpires and he did make intervening contact with an umpire??

It just doesn't add up. 

Granted, one might point to the history of the player.  Bradley has a reputation for poor behavior, while Ortiz, until now, has played without incident.  However, in determining an appropriate sanction for a particular action, should a player's history trump the severity of that action?

Also note the impact of team lobbying efforts, and whether Ortiz was fortunate because he had a good "defense team" on hand:  Immediately after the game, Red Sox CEO (and one-time Williams & Connolly attorney) Larry Lucchino met privately with the umpiring crew and apologized on behalf of Ortiz, which the home plate umpire later said "showed tremendous class."  I agree that Lucchino's entreaty may have been classy, and it was certainly indicative of skillful crisis management, but should an apology from the team's CEO really mitigate a player's actions? 

The Ortiz suspension also begs inquiry into the underlying purposes of a suspension: Is it merely a tool to punish the player, or should it also be used to deter other players?  Applying that question to the Ortiz incident, if a player can heave dangerous objects at umpires without serious ramifications, does that then endanger the safety of future umpiring crews?  Moreover, why should an umpire have to be hit by an object for a serious penalty to be imposed -- wouldn't it make more sense to judge the action (i.e., throwing bats onto the field at umpires), rather than its consequences (i.e., hitting or missing the umpires)?  Equally troubling, when a player lacks deterrence in throwing objects onto the field, can that potentially incite fans to do the same?   

One might pause to consider whether predictable guidelines should be in place, similar to how legislatures have imposed sentencing guidelines on courts.  For instance, take throwing objects from the dugout onto the field.  It is difficult to envision a scenario when such behavior is either justified or accidental.  So, might it make sense for MLB to impose an automatic 10-game penalty for throwing those objects?  This would seem to add both predictability and fairness, particularly for behavior that is conceptually inexcusable.

Sunday, July 18, 2004

Still More on Legal Liability in Recreational Sports:  This is quickly becoming the topic of the summer (see here, here, and here).  The Connecticut Supreme Court has ruled that in skiing, a negligent collision can lead to legal liability.  In addition, the court ruled that a ski area operator can be liable for a collision, if caused by an employee, despite a state statute that says skiers assume the risk of "collision with any other person by any skier while skiing."


The plaintiff in the case was injured while skiing when she collided with a ski instructor, allegedly because of the instructor's negligence.  She sued in federal court and the judge certified two questions of state law: (1) Does a skier assume the risk of an employee-caused collision, thereby foreclosing a negligence action against the ski area? and (2) Does Connecticut extend the doctrine of Jaworski v. Kiernan to the sport of skiing? In that 1997 case, the state supreme court ruled that in order to sue in tort, the injuries from a collision in an amateur soccer game had to arise from intentional or reckless conduct, not mere negligence.


The majority "compared skiing to golf, running and bicycling, where physical contact is unusual, as opposed to football, hockey and basketball, where contact is expected."


This is a fascinating case which raises even more questions about the legal liability of not only those that participate in, but also those that provide recreational sporting opportunities.  It could also have a drastic impact on the skiing industry, as any increase in potential legal liability can cause slopes to close or raise their prices.  A 1978 Vermont court decision assigning legal liability to a ski resort resulted in a slew of legislation protecting the economically valuable ski providers.


You can read more on skiing and the law here and here.

Pete Rose Rule and Legal Liability:  A New York state court is evaluating whether a player's violation of a league rule designed to prevent injury can lead to legal liability when violated.  John Knowles violated such a rule, which prohibits crashing into other players, like Pete Rose did so famously in the 1970 All-Star Game, in a local softball game.  Also like Rose, Knowles injured the opposing player, breaking his leg.  Now the other player has sued, claiming that the league rule trumps the assumption-of-risk doctrine, paving the way for liability in tort.


The trial court agreed in denying the defendant's motion for summary judgment.  In denying the motion, the judge wrote:

Fundamentally, when an organization adopts rules of conduct which define its members' duties requiring, as relevant here, a base runner to slide, to avoid the fielder or to submit to a tag, its violation may expose the offender to liability for any resulting personal injury.

The trial began last week and will be heard in front of a jury.


This harkens back to the debate of the spring of whether a player should be held legally liable for on-field actions.  Obviously, the context in this case is far different than in the Bertuzzi case because the players here are not professional.  Thus, it is far tougher to make the argument that what occurred was "part of the game."  Adults play in recreational leagues for fun and risk enough injury due to aging muscles.  Rules such as the one in question are designed to ensure that no one endures an unnecessary risk of injury.  Thus, one can make a compelling argument that breaking it should lead to legal liability.


Of course, one cannot discount the fact that when people play sports, they often get caught up in the heat of the action, and are not always thinking clearly.  Unlike in the Bertuzzi case, which was a premeditated battery, there most likely is no evidence in this case of an intent to injure, or even an intent to break the rules.  The defendant seems guilty only of an intent to win, and in doing so, unfortunately injuring an opponent.  Viewed in this light, it seems to be much more just a "part of the game."  It certainly does not seem to warrant the $2 million being sought, and may not even warrant payment of medical bills.


Unless the defendant can be shown to have often broken or disregarded the rules, or have had some intent to injure the plaintiff, it does not seem that legal liability should follow.  All sports create a risk of injury, and it seems unjust to penalize a player for an on-field action, taken in the heat of the game, which had an unfortunate result.  But now it is up to the six-person jury to decide.


In related news, Bertuzzi received a break in his criminal case, when officials agreed to try him in a court with a far more lenient punishment scheme.


Hat tip: Martin Schwimmer of the Trademark Blog.

Richardson Suit Dismissed:  From FindLaw:

Nolan Richardson's race discrimination lawsuit against Arkansas was dismissed Thursday by a federal judge who said the case was mostly about "wounded pride."

The basketball coach was fired March 1, 2002. He filed suit claiming he was fired because he is black and that his free-speech rights were violated. 

"This lawsuit is not about money in the perjorative sense," U.S. District Judge William R. Wilson said. "It is primarily about wounded pride - wounded pride in a man who started way behind, but climbed to the top by hard work, savvy, and most of all, perseverance.

You can read more on the case here.

Tuesday, July 13, 2004

Oral Promises & Professional Sports: The Carlos Boozer Saga

First off, I would like to thank Greg for inviting me to contribute to the Sports Law Blog.

Let me jump right in: As many of you know, last week Carlos Boozer of the Cleveland Cavaliers and his agent, Rob Pelinka, persuaded the Cavaliers into voluntarily making Boozer a free agent. Specifically, Boozer orally promised the Cavaliers that if the team declined to pick up its $695,000 option for the 2004-05 season, he would then sign a 6-year, $40 million contract. The Cavaliers were interested in this arrangement, as Boozer would otherwise become eligible for free agency in the summer of 2005, at which time he would likely command a contract well in excess of 6 years at $40 million. However, after the Cavaliers acted on the oral promise and declined the option, Boozer and Pelinka decided to entertain offers from other teams, and Boozer ultimately agreed to a 6-year, $68 million offer sheet from the Utah Jazz. Since Boozer is a restricted free agent, the Cavaliers can match the offer sheet, but only if they clear up enough salary cap space, and they are not expected to be able to do so. Even if the Cavaliers somehow create the requisite cap space, they would still be paying Boozer $28 million more than he had orally promised to sign for. Alternatively, the Cavaliers are now said to be offering Boozer a 1-year, $5 million contract, but he is still expected to formally sign the $68 million deal with the Jazz -- not surprising, considering the $63 million difference in guaranteed earnings.

The fallout from this escapade has been significant. For one, the Cavaliers, and in particular the team's general manager, Jim Paxson, have been ridiculed for needlessly allowing a 22-year-old player, who averaged 16 points and 11 rebounds per game last season, to become a free agent. Indeed, given his remarkable performance and youthful age, Boozer may even be considered this summer's marquee free agent power forward. That must be particularly deflating for Cavaliers' fans, who expected to watch a young nucleus of Lebron James, Luke Jackson, and Carlos Boozer grow into a potent trio and perennial playoff contender.

Only receiving more criticism has been Boozer and Pelinka, both of whom have been labeled liars, if not worse. One report even cites Boozer as a "backstabbing, double-crossing, money-grubbing Judas." Interestingly, Pelinka announced last night that he is no longer representing Boozer, which to some signals Pelinka's disagreement with the decision of his client to renege on an oral promise. In his defense, Boozer is now denying that he ever made a promise, while claiming complete surprise that the Cavaliers would decline his option.

This fact pattern raises a number of questions. For instance, assuming that Boozer indeed made a promise, should we admire him as an adroit manipulator of the NBA's economic system, or should we condemn him as a greedy and untrustworthy opportunist? For those who regard Boozer as greedy/untrustworthy, is it fair to blame him when it was ultimately the decision of the Cavaliers to decline his option? Along those lines, how will contract negotiations between teams and players be affected, if at all? Lastly, what is the role of the agent: To secure his client the most amount of money -- ethically or unethically -- or to only represent his client in ways that adhere to higher ethical norms?

Monday, July 12, 2004

Exciting News: I have returned from Whistler, which is a beautiful part of the world, and am ready to begin blogging again. I will be catching up over the next week of any big news that has occurred the past week. Be sure to let me know if there are any stories that have caught your eye.

In addition, I am pleased to announce that the Sports Law Blog will welcome its first guest blogger, Michael McCann. You may know Michael from his oft-discussed and brilliantly written article, Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft. You can read my review at this link. Michael has much knowledge to share regarding sports law and I look forward to reading his posts.

Monday, July 5, 2004

Bryant Trial links: No time to post a great deal of commentary, but here are some interesting links on the Kobe Bryant trial.

Colorado Supreme Court steps into the 1st Amendment battle

The Order from the Supreme Court

The trial judge's response: a fair trial is at stake.

And just for fun

Kobe Bryant Granted Own Expansion Team

Traveling... I will be on the road much of this week, and so posting could be sparse. If anyone has any interesting stories they think everyone would be interested in, please send them along and I will link to them.

Of course, in the biggest of all news, Coach K will remain at Duke. This is what I thought would happen, but it sure is nice to know he will be on the sidelines next year. And it is not only Dukies that are happy about this decision.

Thursday, July 1, 2004

Say It Ain't So... I was not shocked today to hear that Coach K has been offered the job as the coach of the Lakers. At this point, I think that K has been offered nearly every NBA head coaching position. I was shocked to hear that he was considering it, and that he had made the offer public.

I remain convinced that he cannot be seriously considering this offer. He has a dream job at Duke -- a lifetime contract, a campus that adores him, players that listen to him and a community in which he is highly influential. The Lakers? Uncertain tenure at best. Players that get much more attention and respect than the coach. No influence. No major college coach has ever successfully transitioned to the pros (remember Rick Pitino? John Calipari?) On only one level does this make sense: ego and a new challenge. But I seriously hope that Coach K can focus his energies on winning in the "new" college basketball, which is decidedly a new challenge, instead of bolting to the pros.

Instead, I think (and hope) that this is merely Coach K's way of bringing some attention to the plight of the college game, and the drastic impact of early entries. The theory is this: if Coach K is willing to leave Duke, there must be something seriously wrong in colleges. I really hope so. Because the thought of Coach K on the sidelines for a different team is almost too much to bear.

Importance of Judicial Clerks: Lest anyone doubt the importance of judicial law clerks, or the role they play in the legal system:

    A federal judge says a law clerk's illness has delayed a ruling on former basketball coach Nolan Richardson's discrimination suit against the University of Arkansas.

    On Wednesday, [Judge William R.] Wilson told lawyers in the case that one of his law clerks had been ill with bronchitis last week and this week. That clerk has some expertise in employment law, the judge said, and he wants her to review his findings "with a fine-tooth comb" before he puts them in final form and releases a ruling.

    "This case has had more law applicable to it than I anticipated," Wilson said.

Whoo, it's tough when cases have a lot of law in them. But this shows that a federal judge cannot possibly know everything about every case that comes before them, and thus, why the legal community should pay closer attention to the clerks, many of whom play an important role in shaping the nation's law.

For more on the case, see this earlier post and the article from