As the ‘Baseball Rule’ seems to be on shaky ground for protecting Major League Baseball and its teams from lawsuits from fans injured at games, a few bucks for netting is a lot cheaper than millions from legal action.
Inside Sports Business
Last week’s news that the Mariners would further expand protective netting around Safeco Field was followed a day later by word that all Major League Baseball teams would do the same.
And it’s not surprising.
Mariners president and CEO Kevin Mather issued a statement saying the team is concerned about fan safety, which is no doubt true. No MLB team I know of wants their fans knocked unconscious or to lose teeth or fingertips because of a screaming line drive.
But it appears more likely the main driver behind MLB’s changes is the increased potential for a successful lawsuit by injured fans struck by foul balls or pieces of flying bats. At least one prominent national sports attorney agrees the changed dynamic of how fans pay attention to games has left MLB and its teams worried about being vulnerable to litigation despite the longstanding legal protections they enjoy.
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“I don’t think venue owners are monsters, and I think there certainly is some empathy to wanting to keep their patrons safe,” said Timothy Liam Epstein, a sports attorney and partner at the Duggan Bertsch LLC firm in Chicago. “But at the same time, yeah, lawsuits are driving it. That’s what happens in sports.”
The NHL changed its protective netting in 2002 after a deflected puck struck Columbus Blue Jackets fan Brittanie Cecil, 13, at a game. She died two days later, and the NHL the next season implemented mandatory netting at both ends of the rink in every arena.
MLB waited 13 more years to take action, despite fans repeatedly being injured by flying objects. A Bloomberg News report in September 2014 estimated that 1,750 fans were hurt annually at MLB games, primarily by balls and bats.
MLB and teams are protected by the so-called “Baseball Rule” — printed on the backs of ticket stubs — in which the fan “assumes all risk and danger incidental to the game,” including equipment and objects from the field of play. The legal framework has existed nearly 100 years.
But recent court challenges have claimed such “assumption of risk” doctrine doesn’t consider modern reality.
“The problem is that the ‘Baseball Rule’ as it stands isn’t as strong as it used to be,” Epstein said.
Fans carry smartphones into ballparks, where team-supplied wireless keeps them distracted. MLB commissioner Rob Manfred has acknowledged that the pace of play is too slow for modern fans — especially younger ones — and is trying to speed things up through rule changes.
MLB did act before the 2016 season, after a class-action lawsuit by two prominent plaintiff’s firms on behalf of all season-ticket holders claimed the “Baseball Rule” should no longer apply. Even then, MLB gave a recommendation that teams expand netting from behind home plate only to the nearest edge of both dugouts. The Mariners were among the first to do so.
MLB has firmed up its directive and had all teams extend netting to at least the far ends of both dugouts. For clues why, consider mounting recent attention given the issue.
Last April, the Atlanta Braves settled — without admitting fault — a lawsuit by the father of a young girl whose skull was fractured when struck by a foul ball in 2010. Last September, another young girl had her orbital bone and nose broken by a 105-mph line drive into the seats at Yankee Stadium.
A month later, Yankees fan Andy Zlotnick lost an appeals-court case in Manhattan arguing he had no chance to see a Hideki Matsui foul ball down the right-field line in 2011 because umbrellas obscured his vision. The line drive shattered Zlotnick’s left orbital and cheek bones.
Though Zlotnick lost his case, MLB has been hearing an awful lot of legal arguments over a short time — each case seemingly generating more traction for tossing the “Baseball Rule” altogether.
“Courts are going to be more sympathetic now towards more distractions,” Epstein said. “Not only do you now have video boards that are running some type of promotion or game … but there are more and more partnerships that are getting put in place with various companies.
“People can now interact using their cellphones while sitting in their seats. And so, you now have venue owners and teams that are participating actively in individual, targeted distractions that would seem to be a relatively easy way for a plaintiff’s attorney to defeat a presumption of the case getting tossed under the ‘Baseball Rule.’ ”
Players also are bigger and stronger, and some — including Mariners designated hitter Nelson Cruz and newest outfielder Dee Gordon — have been caught taking performance-enhancing drugs believed to increase bat speed and velocity of batted balls. Word also got out that the MLB Players’ Association had unsuccessfully argued for improved fan safety during talks before the past two collective-bargaining agreements.
The Braves, before settling, had lost an attempt to have the 2010 case tossed under the “Baseball Rule” — which doesn’t apply in Georgia, but which the team wanted applied there.
Epstein said he figures insurance companies underwriting MLB, its teams and stadiums are pushing the sport to “mitigate against future litigation” by taking precautions now.
“If you’re looking at who’s going to actually pay the bills if there’s a lawsuit, there’s probably going to be insurance money at play,” he said.
Insurance companies, after all, specialize in stop-loss business calculations. And spending minimal money on more netting now seems a wiser business decision than risking millions in damage awards clinging to 1920s notions about adequate safety at baseball games.