5 Thoughts on David Ferrer's Infamous Lob and Losing One's Temper over a Crying Baby

28-year-old Spanish tennis player David Ferrer, who is ranked sixth on the ATP World Tour, became frustrated at a crying baby during the quarterfinals of the Sony Ericcson Open on Wednesday. Crowds in tennis matches are supposed to be quiet during play, but obviously -- and as we know from flying on air planes, eating out at restaurants, or attending religious services, among many other activities where we may encounter crying babies -- a baby doesn't have the same ability as an adult to "choose" to be quiet. And while we may become annoyed with a crying baby in a public setting -- or at least annoyed with the baby's parent/guardian -- we are generally supposed to accept the crying and not complain. Otherwise, we might look like jerks.

And yet during a tennis match, a crying baby is perhaps even more distracting than on a flight or at restaurant. Matches are played before thousands of people who become very quiet during match play. A baby crying loudly in this setting will stand out and likely annoy players on the court.

And annoyed is what happened to Ferrer on Wednesday. After he lost his serve to American Mardy Fish midway through the second set in the midst of the crying baby, Ferrer let his temper get to him and directed a forehand lob toward the crying baby:



Thankfully, the lob did not come close to hitting the baby, who nonetheless became quiet after the lob. Ferrer would go on to lose the match, 7-5, 6-2. Ferrer later blamed "indigestion" on the loss and did not address the lob.

I have 5 thoughts:

1) Tort Implications. If Ferrer's lob had hit the baby, he probably would have committed the tort of battery: intentionally causing harmful contact on another. If the man holding the baby was the baby's father (as has been reported), he may have also had a claim for negligent infliction of emotional distress because he would have witnessed the injury of his child and perhaps suffered emotional shock as a result. Even without hitting the baby, Ferrer may have committed assault - intentionally causing reasonable apprehension of imminent harm -- if the lob had come close to hitting the baby (assuming the baby knew what was going on).

2) Probably no Assumption of Risk. I don't think attendees of tennis matches assume the risk of tennis players intentionally hitting balls at them. Also, while tickets for admission to tennis matches probably contain various waivers of liability for the stadium operator -- just like tickets to baseball games contain waivers of liability if a fan is hit by a foul ball -- I'm not sure if those waivers extend to the players. And even if they do, I doubt they cover intentional torts committed by those players, especially since good players should be able to block out the noise.

3) Unlike players employed by NFL/NBA/MLB/NHL teams, Ferrer's independent contractor status likely means he cannot be punished by the ATP Tour. Think about it: if Ferrer had been an NFL player who intentionally threw an object at a fan, commissioner Roger Goodell would be empowered to sanction him under the NFL's Personal Conduct Policy, as any behavior that the commissioner finds detrimental to the league is subject to discipline. And if the commissioner declined to act, the NFL team employing Ferrer could have take action against him.

But the ATP Tour doesn't work in the same way as the NFL or any pro league. It's an association of tennis players who are independent contractors and the individual tournaments they play in, as opposed to a league of competing teams and the players employed by those teams (see previous coverage on our blog regarding structure of ATP).

Still, individual tennis tournaments could decide to prohibit a player from playing in their tournaments. To illustrate, last year organizers of the Swedish Open thought about, but ultimately declined to prohibit two players who were arrested for soliciting prostitutes in Sweden. Given that no one was injured by Ferrer, it seems unlikely that any tournament would boycott Ferrer.

4) Parents bringing infants to tennis matches is not a good idea. A person attending a tennis match should know that people are expected to be quiet during match play. Bringing an infant to the match doesn't seem like a particularly good idea. Maybe it was not possible to get a baby-sitter, but it seems like the parent here was asking for trouble -- especially when he did not take his baby to another area of the stadium after the baby cried loudly, apparently for most of the match.

5) Why didn't an official from the stadium ask the father to go inside with his child for a bit? Sure, it's an awkward thing to ask of a parent, but if the baby was truly disrupting play, why not just politely ask the father to go inside until the baby stops crying? Refund the father's ticket if you have to. It seems like taking no action only made the situation here worse.

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