Comment on Crespin v. Albuquerque Baseball Club and the Sentencing of Minor League Pitcher Julio Castillo

I think that the Crespin court is correct in its assertion in paragraph 13 that “the question before us concerns the concept of breach of duty.” New Mexico is one of the many states to adopt a form of comparative negligence, yet courts still draw on assumption of risk in baseball foul ball (or in this case a fair ball hit into a picnic area during batting practice) cases. The court looked at “the baseball rule” that basically immunizes a defendant if a screened area behind home plate is properly maintained and fans are provided access to such seating. In my class I ask students what they think about requesting that they be allowed to purchase a ticket for a protected screen area. Most of them laugh at the idea that these choice seats must be provided by the team if a fan says that it is the team’s responsibility in discharging this duty to allow the fan to purchase a ticket for an area often allocated to season ticket holders.

The majority concluded that “[w]hile the baseball rule may have made sense during the era of the all-or-nothing contributory negligence doctrine, it no longer does. Under our present tort system, we discern no public policy reason to justify bestowing immunity on the business of baseball.” (Paragraph 24). The court rejected summary judgment for the Albuquerque Isotopes and the City of Albuquerque, but they did grant summary judgment for the Houston Astros and Dave Matranga, the New Orleans Zephyrs’ player who hit the ball into the picnic area. The Zephyrs are the Astros’ AAA farm team. In holding that summary judgment is appropriate for Matranga, the court did write that an intentional act toward a spectator might change the outcome.

Judge Roderick Kennedy in his dissent argued that “the issue of whether a party owes a duty of care to another is a matter of law, not fact, and such conclusions are clearly left in the hands of New Mexico’s courts.” (Paragraph 44) Kennedy marshals a substantial list of sources to support his position that “the baseball rule” should remain the law of New Mexico.

Newspaper articles covering the decision noted an appeal by the Isotopes and the City of Albuquerque to the New Mexico Supreme Court.

Prior to reading the opinion, I was inclined toward the dissent’s position. Now I want to think through the idea of a complete bar to recovery in all cases where fans are injured outside of the screened area behind home plate. The majority opinion covers a good deal of precedent so this case might be quite useful in a class covering tort issues. I applaud the court for properly, in my opinion, looking at the case as one focused on duty and breach of duty. This is the appropriate analysis under a comparative negligence scheme that should not keep some type of assumption of risk doctrine alive. The real issue in this factual scenario seems to be the level of duty owed toward fans sitting in a picnic area in left field prior to the beginning of the game.

Last year in a game between the Dayton Dragons and the Peoria Chiefs, Chiefs pitcher Julio Castillo tried to fire a ball into the dugout during an on-field fight. The throw went high and hit 45-year-old Chris McCarthy in the head causing a concussion. Castillo was arrested and charged with felonious assault. Earlier this week, Castillo was found guilty of the assault and sentenced to 30 days in jail by Montgomery County Common Pleas Court Judge Connie Price. Castillo, from the Dominican Republic, could face an immigration problem with his work visa. Castillo is pitching for Boise this year.

Take Me Out to the Ball Game, to be Injured, in New Mexico

Via How Appealing, a New Mexico appellate court has rejected the "baseball rule" which shields stadium operators from liability for injuries to spectators. The opinion in Crespin v. Albequerque Isotopes provides an excellent discussion of the legal issues involved, including the implications of the abolition of "Assumption of Risk" suggested by the authors of the Restatement of Torts (Third) for the long-sacred rule that baseball arenas need only screen the most dangerous areas of the park to protect fans from injury. A must-read opinion for anyone interested in the intersection of torts and sports law.

Justice Sotomayor Confirmed 68 - 31

The Sports Law Blog has followed the nomination, hearings and now confirmation of Justice Sonia Sotomayor for the past several months. Today, the United States Senate confirmed Justice Sotomayor as the first Hispanic member of the United States Supreme Court and the third woman.

Justice Sotomayor received affirmative votes from 59 of the 60 Senate Democrats (Edward Kennedy did not vote due to illness) and affirmative votes from only 9 of the 40 Senate Repubicans.

Justice Sotomayor has a long history of being intimately involved in cases and decisions that impact significantly on sports and the law.

Topps and Major League Baseball To Announce Exclusive Deal Starting in 2010

Topps and Major League Baseball are ready to announce today an exclusive deal starting next year to make Topps the sole licensed producer of baseball cards according to an article by Richard Sandomir in The New York Times. The deal will return baseball cards to the era of exclusivity enjoyed by Topps for many years before Fleer was successful in opening up the market to other companies. Although Upper Deck still has a deal with the Players Association, it will lose access to the trademarks and logos of Major League Baseball. Sandomir specifically mentions in his article that Tim Brosnan, MLB’s Executive Vice President for Business, believes that the American Needle decision supports MLB’s exclusive deals with Chevrolet, MasterCard, New Era, Pepsi, and now with Topps.

Corporate Executive Compensation and the NFL

Bank Bonus Tab: $33 Billion
Nine Lenders That Got U.S. Aid Paid at Least $1 Million Each to 5,000 Employees

Splashed across the the front page of the Wall Street Journal Friday (7.31.09) was the news that nearly $33 billion in executive and employee performance bonuses were paid out in 2008 by nine Wall Street banks that had accepted government bailout money through the TARP program. Despite near collapse and a necessary rescue from the government, nine investment banks still paid the executives and employees that presided over the catastrophic declines $32.6 billion in bonuses.

This news comes on the heels of reports on Thursday (7.23.09) that Goldman Sachs, Morgan Stanley and JPMorgan Chase had set aside dozens of billions of dollars to pay their executives and other employees for 2009 performance. On the same day that Goldman Sachs announced that it would likely (if the pace of set asides continues this year) pay its executives an average of $775,000 in 2009, more than double that of 2008 and more than bonuses paid in 2007, a report on unemployment indicated that jobless claims increased more than expected, and the Federal Reserve expects the unemployment rate to top 10 percent by year-end.

As unemployment increases on Main Street, over on Wall Street, the song seems to remain the same. Executives and employees will receive significant performance bonuses in 2009 despite receiving government bailout funds and in many instances presiding over a near collapse of the banking industry. More shocking than the plans to compensate for 2009 is the New York Attorney General Andrew Cuomo report that $32.6 billion in bonuses were paid out in the wretched economic performance year of 2008. What gives?

Common sense seems to dictate that if performance is dismal, then bonuses should match that performance (meaning, very little should be paid in bonuses). Remember, that bonuses are paid to executives and employees in addition to salary. In the the National Football League, performance bonuses are negotiated in advance between an athlete and a professional club, and those bonuses are simply not paid if the negotiated performance is not met. Many bonuses in professional sports are team based, indicating that if a team reaches a certain level of success, then bonuses will be paid to a particular player. The NFL collective bargaining agreement even breaks bonuses down for purposes of the salary cap, into "likely to be earned" bonuses and "not likely to be earned" and those bonuses count differently toward a team's overall budget and cap number. In the NFL, bonuses are paid for successful performance and are in excess to an athlete's base salary.

Apparently on Wall Street, a much different conceptualization attaches to performance bonuses than in the world of professional sports. Nine investment banks received bailout funds rather than face collapse, and then turned around in that environment of "failure," and paid bonuses to its executives and employees that presided over that dismal performance, above and beyond salary, to the tune of $33 billion. In some ways, one could interpret this payout as taxpayers (through the TARP bailout) subsidizing the performance bonuses that were paid to executives that engaged in breathtaking risk and lost badly. As would be expected, Congress is inflamed. Edolphus Towns, the chairperson of the U.S. House of Representatives investigative panel called the payouts "shocking and appalling" and announced hearings.

Those that defend paying significant bonuses in the face of failed performance typically claim the following: (1) Wall Street must pay to keep talent at their firms; (2) that only a small group of executives or employees are typically responsible for losses and it is unfair to punish employees or executives in other areas of the business.

AG Cuomo stated: "The banks say they pay for performance. . . . Yet in 2008 there was no performance and they still continued to pay out huge sums of money."

I get the argument that individuals that were not responsible for the damning losses and egregious decision making should not be held responsible or "punished" for the "sins" of the few. Still, that argument fails to appreciate the broken executive compensation system in place on Wall Street. Over and over again, Wall Street executives have shown that they exist in a much different space than the rest of America. From the AIG "retreat" to a posh resort moments after receiving bailout funds to the $33 billion in bonus payouts for 2008 performance, those that run Wall Street seem incapable of recognizing Main Street and the human suffering that continues unabated for many based almost wholly on reckless and irresponsible leadership by Wall Street executives.

What to do about executive compensation?


** Cross posted on the "Corporate Justice Blog" **
See: http://corporatejusticeblog.blogspot.com/

Plaxio Burress Indicted: Will he now turn to D.C. v. Heller?

I have a new column up on SI.com on a Manhattan grand jury indicting Plaxico Burress. Here is an excerpt:

* * *

Today's indictment is a victory for Manhattan district attorney Robert Morgenthau and New York City Mayor Michael Bloomberg, who has repeatedly advocated that Burress be prosecuted to the fullest extent of the law. It is similarly a victory for gun control advocates and for those who believe that athletes and celebrities should not receive preferential treatment.

* * *

Although unlikely, the trial version of a Hail Mary could come in the form of a constitutional challenge to New York law. Last year, in District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment guarantees the right of individual U.S. citizens to keep and bear arms while at home. On the surface, it seems unlikely that Burress' legal team could use Heller to argue that New York's law also violates the Second Amendment. Heller concerned a Washington D.C. prohibition on owning certain firearms -- including in one's home -- whereas New York's law concerns possession of certain firearms outside of one's home (or place of business). Still, Burress may contend that his situation is not so dissimilar from the legal challenge brought in 2003 by D.C. resident Dick Heller. Burress could assert that both he and Heller were merely exercising their right to bear arms under the Second Amendment.

* * *

To read the rest, click here.

Marist University v. Matt Brady: The Legality of Non-Recruit Clauses

Over on Sienna Saints Blog, Ryan Restivo has been closely covering a lawsuit recently brought by Marist University against its former men's basektball coach, Matt Brady. Marist claims that Brady violated a contractual obligation to refrain from recruiting Sienna recruits if he were to leave Marist (which he did -- he's now coaching at James Madison University). Gabe was recently interviewed about this dispute, and Ryan interviews me for my thoughts. Here's an excerpt:

* * *

Sienna Saints Blog: So what claims can Marist bring against Brady?

Prof. McCann: At this point, the only legal claim Marist would have is the potential breach of contract claim against Matt Brady over the clause which allegedly prevented him from recruiting players. If litigated, the claim would be examined under New York contract law. Depending on how the clause is worded, however, it may be very difficult to enforce. For instance, how does the contract define “recruiting” — does that mean any communication or does that mean certain kinds of communication? Does it mean a formal offer to play at another school? Does it mean putting a potential recruit in touch with an admissions office? If the phrase is too vague, a court would be unlikely to enforce it, particularly if the court is unable to find any other case on-point (and I’m unaware of such a coaching clause being litigated before).

A court might also void the clause on grounds of public policy, particularly since it would seem to interfere with educational opportunities for student-athletes who, because of the clause, might not be recruited by Brady’s new employer, James Madison University.

* * *

To read the rest, click here.