A Sports Law Hypothetical

So, the Kansas City Royals are playing the Orioles in Baltimore this week. Last night the Royals pitcher, Yordano Ventura, plunked the Orioles shortstop, Manny Machado, with a 99 mph fastball. This ensued:

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During the post-game spin sessions, the Orioles severely criticized Ventura, pointing out the potential for this to result in a career-ending injury (or worse) This got me to wondering. Supposing such an injury had occurred, would this be actionable in civil court?  Could Machado sue, with a decent chance of winning? Baseball and the civil courts are among my interests, and so far as I know no one has ever sued for this. Is there a barrier I am missing, or is this an area ripe for innovation?

 

Liability

The first question is whether there is any liability, and if so, who. Would Machado be precluded by assumption of risk?

By way of factual background, the plunk was in Machado’s third at-bat of the night. It also was in the fifth inning, which tells you that things were not going well for the Royals. In his second at-bat Ventura was pitching him high and inside, such that Machado had to dodge him. The Orioles radio crew I was listening to were explicit that they thought Ventura was trying to hit him. The Orioles manager after the game said he had talked to Machado before his third at-bat about being careful because Ventura was gunning for him. Ventura was expelled from the game after the incident (as was Machado), which could be taken to imply that the umpires also thought it was intentional.  The icing on the cake is that this was the fastest pitch Ventura threw all evening. There seems to me a pretty good argument that a jury could be persuaded that it was more likely than not that Ventura hit Machado intentionally.

Does assumption of risk cover this situation? I wouldn’t think so, but maybe I am missing something.

Who would be liable? Ventura, presumably, but you want to bring in the deep pockets. How about the Royals? Does respondeat superior apply? The fact set leads to this being an intentional tort, which ordinarily would mean that the individual tortfeasor was acting outside the scope of his employment, letting the employer off the hook. But Ventura had, at least arguably, been gunning for Machado the previous at-bat, and yet the Royals manager left him in the game. Doesn’t this mean that the Royals gave tacit approval of his actions? What about Major League Baseball? Ventura has a reputation such that nobody was surprised by this. Yet MLB permitted him to continue playing.

 

Damages

We got us some deep pockets here. This is important, because now we come to damages. If Ventura/Royals/MLB are found liable, for how much? We are talking about a career-ending injury here. What is Manny Machado’s career worth? This is where it gets interesting. Machado is really really good. If you follow baseball and you don’t know about him, that isn’t your fault. It is the media’s, what with Baltimore not falling into the charmed circle of Cities That Matter. He also is young: just 23 years old. He is just hitting his prime. It is entirely plausible to talk about him as being perennially in the MVP discussion. He won’t be eligible for free agency until 2019. That is when the discussion moves to the big money. Here is a recent blog post about what his first contract as a free agent will run. The number being tossed around is $400 Million. Yes, this is just talk, but it is not unrealistic. And that is his first contract. It is entirely possible that he could go into a second.

So putting this together, I see a non-trivial argument for liability, deep pockets on the defendants’ side, and loss of future income in the hundreds of millions. What am I missing here?

Bonus question:  Would the Orioles also have a cause of action for the loss of this valuable asset?

Oh, and be sure to file in the District of Maryland. The subsequent venue fight will probably be lost, but you never know…

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Richard Hershberger is a paralegal working in Maryland. When he isn't doing whatever it is that paralegals do, or taking his daughters to Girl Scouts, he is dedicated to the collection and analysis of useless and unremunerative information.

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11 thoughts on “A Sports Law Hypothetical

  1. When I was in torts, I learned that playing professional sports or maybe just sports always led to an assumption of the risk.

    You would need to have an intentional tort maybe.

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  2. I would say an assumption of risk only so far as the contact or touching was within the rules of the game or standard for the game.

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    • Two hockey players that I’m aware of have been charged with assault for whacking guys in the head with their stick, which most likely (unless you’re old school) doesn’t conform to established rules of the game.

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  3. This case might be instructive. Todd Bertuzzi hit Steve Moore from behind, when he didn’t have the puck, driving his head to the ice and causing injuries that ended Moore’s career. (If you see it in real time it quite clearly conforms to our preconceptions of assault.)

    Bertuzzi … pleaded guilty to criminal assault causing bodily harm and was sentenced to one year of probation and 80 hours of community service.

    Given that the punishment was imposed by the state, the above implies that the case made it to court and was presented before a judge, tho I’m not a lawyer…

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  4. Assumption of the risk only applies to negligence and strict liability torts if I’m remembering correctly. Battery is an intentional tort. If you can prove battery than it should be actionable. The photograph makes the hit look very intentional rather than negligent.

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    • The photo is of the aftermath of the plunking. It’s a punch. It’s definitely intentional.

      Which puts the question past wondering about the pitcher’s intention.

      Could hockey and baseball players sue each other all the time for all the fights they get in – they just don’t? Zack Greinke had his collarbone broken in a fight in which he was being rushed for throwing a pitch the batter didn’t like. So there are damages.

      Granted, that’s not quite the hypothetical Richard raised.

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      • The photo is of the aftermath of the plunking.

        Yes. I perhaps did not make this entirely clear. To be honest, I couldn’t find a picture of the plunk. The aftermath makes for a better visual, so that’s what got spread around.

        Could hockey and baseball players sue each other all the time for all the fights they get in – they just don’t?

        In this case, Machado got one shot in on Ventura. It’s not entirely clear to me how solidly it landed. I have not seen any reports of injuries resulting from this. My impression is that actual injuries in these things are pretty rare, Zack Greinke notwithstanding. And even in his case, what are his damages? The team is still paying his salary, and they cover his medical bills. So this leaves non-economic damages, aka “pain and suffering.” Even in a straightforward auto accident case, for something like a broken collar bone that will heal, you are looking at non-economic damages in perhaps the low five figures, which is pretty much rounding error for someone like Greinke.

        It is the career-ending type injury where the damages get interesting.

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  5. I realize this is a week after the post because I haven’t checked my RSS feed in a while. But if anyone’s still reading, we actually covered something like this in my Torts class, although it involved football, not baseball (Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979), http://law.justia.com/cases/federal/appellate-courts/F2/601/516/377615/).

    The fact pattern: Bengals receiver Charles Clark was running a route in the end zone. Billy Thompson, a Broncos safety, intercepted the pass. Clark turned to chase Thompson, and as Thompson was returning the interception, another Broncos DB, Dale Hackbart, blocked Clark by “throwing his body in front of him,” taking him out of the play. Since Hackbart couldn’t catch up to the play at that point, he watched it from one knee. Clark, out of frustration, hit Hackbart from behind. It wasn’t called as a penalty on the field and Hackbart didn’t feel any immediate injury, but he was diagnosed with a neck fracture shortly after.

    The trial court initially found for the Bengals and Clark, essentially on the assumption-of-risk argument: if you play football, you take the chance of something like this happening, and the federal courts are not equipped to police what happens on the field in pro sports. The appellate court reversed and held that it was appropriate for the courts to address intentional or reckless injury within the course of the game, although it also observed that recovery on a negligence theory would be extraordinarily difficult.

    Now, you could differentiate this by saying that plunking batters is an accepted part of baseball and a back-of-the-head forearm shiver to a guy who’s out of the play is not an accepted part of football; it seemed important to the appellate court that the NFL rules explicitly banned Clark’s conduct. The fastball to Machado is also part of the actual play, whereas the Clark play took place away from the action. Finally, it would be a lot easier for Ventura to credibly claim that the fastball got away from him than it would be for Clark to say that he hadn’t meant to hit Hackbart. Ultimately, my prediction would be that Machado would have a decent chance, but I would call it basically a coin flip.

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