Monday, December 23, 2013

Lawyer Tony LaRussa Inducted into the Baseball Hall of Fame

Most people know Tony LaRussa as a Major League manager.  It is also widely known that he got his law degree, anticipating that his life in baseball was to be short-lived. 

What is not as well-known is Tony LaRussa, the Chicago Cub.  LaRussa made his major league debut as an 18 year old in 1963 with the then Kansas City Athletics.  He played second base and hit .250 in 53 plate appearances.  He showed a keen eye and posted an on base percentage nearly one hundred points higher at .346.  It took LaRussa another four seasons, however, to work his way back to the major league club, appearing in 13 games for the Oakland Athletics from 1968-1969. 

In 1970, Tony LaRussa was able to crack the lineup more regularly, appearing in 52 games and hitting .198 in 123 plate appearances.  He again showed a good eye, posting an on base percentage over one hundred points higher at .301.  After going hitless in 8 at bats for the 1971 A’s, LaRussa’s contract was purchased by Atlanta, where he hit a robust .286 and had a sparkling .375 on base average in 8 plate appearances with the Braves.  

LaRussa played in the Braves’ system in 1972 but did not make an appearance with the big club in Atlanta that season.  On October 20, 1972 the Braves traded him to the Chicago Cubs in exchange for right-handed pitcher Tom Phoebus, who had gone 3-3 with 6 saves and a 3.78 ERA in 37 appearances with the Cubs.

In 1973, LaRussa made the team out of spring training and was on the bench for the April 6th contest as the Expos faced the Cubs in front of 40,273 at Wrigley Field.  The Expos struck first, scoring 2 runs off of Fergie Jenkins in the top of the 1st inning.  The Cubs scored a run in the bottom of the 1st off of Mike Torrez and the score remained 2-1 as the Cubs came to bat in the bottom of the 9th. 

Cubs first baseman Joe Pepitone led off the inning with a single to centerfield, despite a five-man infield, and Cleo James was called to run for him.  Ron Santo then reached on an error on a ball hit to Expos second baseman Ron Hunt.  Cubs manager Whitey Lockman turned to LaRussa and pointed a finger in his direction.  “Run for Santo” was all he said.  Tony LaRussa grabbed his helmet and trotted out to first base to spell Santo.

Glenn Beckert drew a base on balls and the Cubs were in business with the bases loaded and nobody out.  Randy Hundley walked and Jones scored to tie the game at 2-2.  But Don Kessinger promptly fouled out and Jim Hickman followed with a strikeout. 

The Cubs were down to their final out and Rick Monday came to the plate, hoping to break the tie and avoid extra innings.  Tony LaRussa danced off of third.  Monday worked the count against fireballer Mike Marshall and eventually coaxed a walk!  LaRussa jogged home and triumphantly stomped on home plate, having scored the winning run in his Cubs debut.

And there you have the entirety of Tony LaRussa’s career with the Cubs.  He never appeared in another major league game for the Cubs after he scored the winning run on Opening Day, 1973.  LaRussa was sent down to the Cubs’ AA affiliate in Wichita and put together a nice season, hitting .314/.403./.393 with 5 home runs and 75 RBIs in 106 games for the Aeros.

After another four seasons in the minors, LaRussa retired as a player at the end of the 1977 season, never having reached the major leagues again.  The very next year, he was hired to manage the White Sox AA team in Knoxville.  By August, 1979 he was called upon to manage the Chicago White Sox when his 1973 Cubs teammate Don Kessinger resigned from the post. 

LaRussa managed consecutively in the major leagues through his retirement in 2011.  He is just one of four men listed on the Cubs all-time roster as a pinch runner and only one of two, the other being Mel Kerr, to have scored a run in his only pinch running appearance.

He finished his managerial career third on the all-time list with 2851 wins and led the 1989 A’s and 2006 and 2011 Cardinals to World Series titles.  He is now a Hall of Famer, inducted with fellow managers Bobby Cox and Joe Torre

Sunday, December 15, 2013

Comedian Danny Thomas’ Investment Group Fails in Bid to Buy Chicago White Sox

Epton v. CBC Corp., 48 Ill.App.2d 274, 197 N.E.2d 727 (Ill. App. 1 Dist., 1964)

What happened?

In early April 1961, the investment group with a controlling interest in the Chicago White Sox offered to sell its share to a consortium organized by Chicago attorney Bernard Epton that included well-known comedian Danny Thomas. The agreed upon sale price was $4.8 million (about $37.5 million today.)

The White Sox stock, comprising a 54% share, was owned by CBC Corporation, controlled by Bill Veeck, Hall of Famer Hank Greenberg and Arthur Allyn, Jr. The group had purchased this share on March 10, 1959 from White Sox founder Charles Comiskey’s daughter, Dorothy, for $2.7 million (about $21.8 million today.)

Upon the sale to CBC, the White Sox enjoyed immediate success and captured the 1959 American League pennant. After falling to the Los Angeles Dodgers in the World Series; however, the White Sox finished 10 games back in 1960. By early 1961, the Bill Veeck group saw an opportunity to make a quick, handsome profit and agreed to sell their 54% interest in the American Baseball League Club of Chicago to the Danny Thomas group.

On May 31, 1961, a handshake deal was made with the Thomas group having a one-week option for $1000 to purchase the shares of stock for the agreed upon price. At the conclusion of this meeting, Veeck reportedly told Epton, "O.K., Bernie, *** we have a deal. I am glad that it’s taken care of. I know you will do a good job." Greenburg and Allyn are also alleged to have shaken hands with Epton and congratulated him on the deal. The written option agreement had not been signed, however.

As agreed, plaintiff delivered the check for $1000 to the seller’s attorney on the morning of June 2, 1961. That afternoon, however, Epton visited Allyn’s office and was told that Greenberg was being difficult. Allyn assured Epton that they would get the option agreement signed so that the sale could be formally announced on June 5, 1961. For unknown reasons, however, Hank Greenberg was having second thoughts.

On June 3, 1961, Epton offered a certified check in the amount of $100,000 to show their group’s good faith and ability to perform. Veeck refused the check, telling Epton that it was not necessary.
Bernard Epton with Certified Check
On June 5, 1961, CBC returned the $1000 check that they had accepted but not deposited, informing the Thomas group that Greenberg was not willing to sign the option agreement and that the CBC group was not going to be able to sell the stock to them.

As a result of the deal having fallen through, Epton filed suit seeking that the court compel CBC to sell them the team under the terms of the option agreement or alternatively, award them damages in the amount of $700,000 (about $5.47 million today), claiming that the stock they agreed to purchase for $4.8 million was actually worth $5.5 million.

The option agreement at issue provided that the Thomas group was to give written notice of their intent to exercise the purchase option and deliver a check in the amount of $99,000 to CBC. The Thomas group had not done either but claimed that their oral notice was sufficient and that they had substantially complied by offering the $100,000 check that Bill Veeck said was not necessary.

So who won?

The court ruled in favor of the CBC group, refusing to force the sale or award any monetary damages to the Thomas group.


The court found that even though Epton was on notice that Greenberg was refusing to go along with the option, "plaintiff still did not give written notice or pay the required $99,000; rather, he insisted that defendants sign the option agreement, thereby evidencing his uncertainty as to whether there was in fact any binding agreement." Accordingly, the court affirmed the lower court’s dismissal of Epton’s lawsuit.

What happened after this lawsuit was decided?
Interestingly, the stock owned by Veeck and Greenberg was sold to Arthur Allyn, Jr. and his brother, John Allyn and they owned the team together until John bought out Arthur in 1969. In 1975 John Allyn sold the team back to Bill Veeck.

Bernard Epton served in the Illinois House of Representatives from 1969 through 1983. He was unsuccessful in his 1983 bid for mayor of Chicago, losing a close race to Harold Washington.

Danny Thomas founded the St. Jude Children's Research Hospital in 1962.  It may never be known if the White Sox deal falling through sped up his efforts to bring the children's hospital to fruition, but Danny Thomas' vision has certainly been responsible for saving the lives of thousands of children since its inception. 

Saturday, December 14, 2013

Over Fifty Years Before Jackie Robinson Broke Major League Baseball’s Color Barrier, an Integrated Minor League Team Battled for the Rights to Future Hall of Fame Black Ballplayer Frank Grant

Harrisburg Base-Ball Club v. Athletic Association, 1890 WL 2997, Pa.Com.Pl. (1890)

Who was Frank Grant?
The plaintiff in this case, better known as the Cuban Giants, was admitted to Eastern Interstate League as the representative from York, Pennsylvania and played as the Monarchs.  The manager of the defendant Harrisburg Ponies, James Farrington, was none too pleased that the talented Giants were welcomed into the league and countered by luring second baseman Frank Grant and catcher Clarence Williams to sign on with the Ponies, despite the fact that each had already signed contracts to play for the Giants/Monarchs for the 1890 season.
Grant was held in such high regard that he received a hero’s welcome in Harrisburg and was nicknamed “The Colored Dunlap” (an obviously insensitive moniker nowadays) due to his favorable comparisons to white second baseman Fred Dunlap.
According to the Harrisburg Morning Patriot, Grant was the “most famous colored ballplayer in the business” and “when he appeared on the field a great shout went up from the immense crowd to receive him, in recognition of which he politely raised his cap.”
What was the basis for the lawsuit?
The Giants claimed that the loss of Grant, one of their “most expert players” would cause irreparable harm to their profitability.  Moreover, the Giants claimed that they had expended great sums of money to erect “buildings, fences and accommodations for the public” with the expectation that Grant, “a player of great reputation,” would draw a substantially larger paid attendance.  They asked the court to issue an injunction to prevent Grant from playing for the Harrisburg Ponies in 1890.  Importantly, however, the Giants could not ask the court to compel Grant to play for them in 1890 because such a remedy was not available at law.
So who won?
The court ruled in favor of the Ponies and Frank Grant was allowed to play the 1890 season for Harrisburg.
The court found that because they did not have the power to force Grant to play for the Giants in 1890, Grant’s playing for the Ponies was not the direct cause of the damages to the Giants.  In other words, the Harrisburg Ponies were not at fault because the Giants would have sustained the same claimed losses even if Grant had played a team other than the ponies.
Additionally, the court found that Grant’s contract with the Giants was not fully enforceable because it lacked mutuality, in that only the Giants had the right to compel specific performance.  The provision that the court singled out gave the club the right to cancel the contract “at any time” if it appeared that Grant was “not fulfilling his agreements to the best of his ability.”
What happened after the case was decided?
Grant enjoyed a productive season for the Ponies during their time in the Eastern Interstate League, hitting .333, slugging .488 and stealing 22 bases in 59 games.  In the middle of July, an opportunity arose for the Ponies to join a higher minor league when the Jersey City Jerseys of the Atlantic Association folded. 

The problem for the Ponies was that the American Association did not have any black players.  Teams such as the Washington Senators and Baltimore Orioles initially refused to play the Ponies if Grant was in the lineup.  Regardless, Harrisburg was admitted and took over Jersey City’s record. 
Despite the prejudice Grant faced on and off the field, he hit .332 with 13 doubles in 47 American Association games with the Ponies.  In 2006, Frank Grant was inducted into the Hall of Fame by the Negro League Committee.

Tuesday, December 10, 2013

James E. Bennett - Inventor of Baseball's Most Ridiculous Patented Equipment

What is a patent?

Long ago, governments recognized that protecting inventors’ efforts was essential to encourage technological advancement but realized that limiting the time in which an inventor had the exclusive right to market their invention served the greater good by preventing the inventor from controlling a useful product forever.  Patents were first granted in Europe in the late 1400s and the patent system was first enacted in the United States in 1790.  To date, there have been thousands baseball-related patents issued covering everything from game equipment to methods of compressing game broadcasts. 

In the United States, a patent is an intellectual property right granted by the government to an inventor that “excludes others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.  Currently, a utility patent is enforceable for 20 years from the date on which the application was submitted, assuming that periodic maintenance fees are paid as scheduled.

What can be patented?

A utility patent will be granted for a machine, process, article of manufacture, composition of matter (or any improvement to an existing machine, process, article of manufacture, composition of matter) as long as it is “new, nonobvious and useful.”  There are certain things that cannot be patented, however, such as laws of nature, abstract ideas and inventions that are morally offensive or “not useful.”

The “non useful” component is somewhat interesting in that the patent examiner is charged only with making a decision whether an invention will function as expected and otherwise has a “useful purpose.”  As you will see below, “useful” does not always mean that the invention will be marketable.

So how did James Bennett hope to change baseball?

While it is not clear whether inventor James E. Bennett of Momence, Illinois is the same James Bennett who played for the Sharon Ironmongers in the 1895 Iron and Oil League, it seems clear that he did not exert any forethought as to whether his inventions would be practical when used under baseball game conditions.  Either that or he just really hated catching a ball with the existing baseball glove technology available at the turn of the 20th Century. 

By the early 1900s, baseball gloves had undergone constant improvement.  Starting with George Rawlings in 1885, (Pat. No. 325,968) protective gloves were becoming more acceptable to protect fielders’ hands.  In 1891, Harry Decker added a thick pad to the front of the glove (Pat. No. 450,355) and Bob Reach added an inflatable chamber (Pat. No. 450,717).  By 1895 Elroy Rogers had designed the classic “pillow-style” catcher’s mitt (Pat. No. 528,343) that would be used with little change until Randy Hundley pioneered the one-handed catching technique in the 1960s using a hinged catcher’s mitt.  

Regardless of the existence of the baseball glove technology in use at the time, James Bennett tried to think outside the box by eliminating the catcher’s mitt all together and, instead, attaching that box to the catcher.  Here is 1904’s "Base Ball Catcher" in all of its ill-conceived glory:

Front View
Side View
Bennett apparently envisioned the catcher squatting behind home plate acting as a passive target for the pitcher’s offerings and designed this contraption to accept the pitched ball into the cage such that it would strike the padding and drop through a chute into the catcher’s hand so it could be returned to the mound.  As you can see, however, the device would have significant shortcomings should the catcher have to attempt to throw out a would-be base stealer, be required to catch the ball for a play at the plate, attempt to block a wild pitch or especially to field his position on a ball put in play in front of the plate.   
But Bennett was not finished yet! In 1905, he patented a two-handed "Base Ball Glove" with an oversized pocket to trap the ball:

Front and Back View
Bennett claims that this poorly imagined glove is easy to use because the fingers on the player’s throwing hand were specially designed to “permit the easy and quick removal of that hand to grasp and throw the ball.”  Just as with the "Base Ball Catcher," however, this design does not offer the player much in the way of a catching radius.   

So what happened to James E. Bennett’s inventions?

As of 1918, he was still looking for investors, according to this advertisement he placed in the August and October issues of “Forest and Stream” magazine.

Friday, November 22, 2013

Houston Astros Ownership Files Fraud Lawsuit against Drayton McLane over Botched TV Deal

Houston Baseball Partners, LLC v. McLane Champions, et al., No. 201370769, Harris County, Texas

The wrangling over future broadcasts of Houston Astros games has finally come to blows as the Houston Baseball Partners, LLC ownership group, led by Jim Crane, has filed a lawsuit in Harris County, Texas alleging misrepresentation and fraud.  Specifically, the petition alleges that the Houston Regional Sports Network, of which plaintiff purchased a 40 percent stake, was fraudulently overvalued and that the subscription rates previously being sold by defendants were rejected by Time Warner, Direct TV and AT&T. 
“Ultimately, fans of the Houston Astros have been injured because Defendants’ misrepresentations leave plaintiff with an impossible choice: either accept the broken network as is, and deprive thousands of fans the ability to watch Houston Astros games on their televisions, or distribute the games at market rates and take massive losses out of the Houston Astros player payroll – thereby dooming the franchise for years to come”

The Astros had formed the network in 2003, in conjunction with the Houston Rockets ownership, and Comcast later purchased an equity stake in the network in 2010.  Comcast agreed to pay certain monthly fees based on the number of subscribers in a given month for each of several distinct geographic zones. 

Plaintiff claims that Comcast eventually agreed to an “inflated” Zone 1 base rate; however, Comcast retained a “most favored nation” right such that they could reduce their rates if affiliate distributors were not willing to contract at the premium Zone 1 rate.  These “inflated” rates were thereafter incorporated into the Comcast business plan that plaintiff relied upon in negotiating the purchase of the ball club and broadcast network shares in 2011.

In order to prove their case, Houston Baseball Partners will need to prove that the (1) inflated Zone 1 base rates overstated the projected profitability and ultimate value of the Astros’ stake in the network, (2) that these representations were materially false and misleading when they were made, (3) the defendants knew or should have known that the representations were false and misleading, (4) that the false or misleading representations were made with the intent of inducing plaintiff to execute the purchase agreement, (5) that plaintiff relied on these misrepresentations to their detriment, and (6) that plaintiff suffered damages as a result.

Fraud is difficult to prove and initially, it would appear that plaintiff will have some difficulty establishing that the inflated rates were misleading if they were being honored at the time of the purchase.  Presumably, the most favored nation status would have been examined during the due diligence process and the risks that accompanied such a provision would likely have been accounted for in the purchase price.

What is not clear at this point is the correlation between the Astros’ on field performance and the number of subscribers that pay to access the broadcast, especially in light of the dismal performance of the team in 2013. 

Wednesday, November 13, 2013

Fan Injured in Promotional Horse Race Loses in Lawsuit Against Atlantic League Ball Club

Duncan v. Somerset Patriots Baseball Club, No. A-4279-08T3 (N.J. Super., 2010)

What Happened?

The Somerset Patriots are an independent minor league baseball team established in 1998 and based in Bridgewater, New Jersey.  The Patriots have enjoyed great success, winning the Atlantic League championship in 2001, 2003, 2005, 2008 and 2009 under the guidance of manager and former star reliever Sparky Lyle.  (In fact, the Patriots’ mustachioed mascot, Sparkee, was named after Lyle.)

Daniel Duncan attended the Patriots home game on August 5, 2006, a team whose roster featured the nephews of Hall of Famers Roberto Clemente (Edgard Clemente) and Ryne Sandberg (Jared Sandberg.)  

Duncan entered a random drawing to participate in several promotional events during the game and was selected to take part in the “Monmouth Park Horse Race.”  For this event, sponsored by the famous ocean-side racetrack of the same name, Duncan and a partner were given a horse head to carry (not the Godfather kind) and a bandanna to tie their legs together.  The race, itself, was to take place on the field, starting at home plate and ending at first base.

As Duncan went to take his first step, however, he lost his balance and fell, injuring his knee.  He claimed initially that he slipped on wet grass and did not allege any other defect that would have caused him to fall; however, he later testified at his deposition that he did not actually notice whether the grass was wet.  All of the other eyewitnesses testified the grass was dry.

The trial court dismissed the case, finding that the Patriots were not required to warn Duncan regarding the risks inherent in the three-legged race and that there was no evidence that the field was defective or had been improperly maintained.    

The Appeal

Plaintiff appealed claiming that there was a question of fact as to whether the field was defective and whether the Patriots should have warned him about the dangers he might encounter while taking part in the promotional race.

Who Won the Appeal?

The Somerset Patriots.  The appellate court affirmed the trial court’s dismissal of the injury lawsuit.


The reviewing court found that Duncan was aware of the hazards inherent in a three-legged race, having just participated in one with his son at a Boy Scout camp-out.  Furthermore they stated that, “walking and running on grass is a common experience, and the risk of doing so with any particular kind of footwear is known equally by the participant and the property owner.”

They felt further that the ball club could have provided warnings but this was balanced by the fact that Duncan voluntarily agreed to compete in the race.  Ultimately, the court held that the Patriots had no duty to warn plaintiff about the potential risks involved in the three-legged race.

Monday, November 11, 2013

Revenue Sharing Deal Cubs Struck with Rooftop Owners Holding Up Wrigley Field Renovations

During the 2013 baseball season, the City of Chicago approved a $500 million plan to renovate Wrigley Field and build an adjacent office building and hotel.  Included in the renovation plan is the proposed construction of a large video board behind the left field bleachers and signs advertising Budweiser behind the right field bleachers.  The Cubs have delayed the start of this project, however, because the owners of the rooftop businesses across from the ballpark have threatened to file a lawsuit against the Cubs because the proposed signage will obstruct the views of the field from their respective rooftop businesses. 

Rooftop Litigation History

Detroit Base-Ball Club v. Deppert, 61 Mich. 63, 27 N.W. 856 (Mich., 1886)

Disputes over neighbors viewing ballgames are nothing new.  In 1885, John Deppert, Jr. constructed a rooftop stand on his barn that overlooked Recreation Park, home to the National League’s Detroit Wolverines, future Hall of Famer Sam Thompson and a rotation featuring the likes of men named Stump Wiedman, Pretzels Getzien and Lady Baldwin.  The Wolverines claimed that they had to pay $3000 per month for rent and that the 50 cent admission fees, helped to offset this cost.  They were thereby “annoyed” by Deppert charging people, between 25 to 100 per game, to watch the games from his property and asked the court to forever ban Deppert from using his property in this manner. 
Recreation Park - Home of the Detroit Wolverines

Deppert countered that the ballgames had ruined the quiet enjoyment of his premises, that ballplayers often trespassed on his land in pursuit of the ball and that he often had to call the police to “quell fights and brawls of the roughs who assemble there to witness the games.”  He further claimed that his viewing stand had passed the city’s building inspection and that he had the legal right to charge admission and sell refreshments. 

The trial court dismissed the Wolverines case and the ball club appealed.  The Supreme Court of Michigan agreed that the Wolverines had no right to control the use of the adjoining property; therefore, Deppert was within his rights to erect a stand on his barn roof and sell refreshments to fans that wanted to watch the game.  Furthermore, there was no evidence that Deppert’s rooftop customers would otherwise have paid the fees to enter Recreation Park.

Similarly, the rooftops of the buildings across the street from Shibe Park were frequently filled with fans wanting a view of the Philadelphia Athletics game action.  While never happy about the situation, Connie Mack was pushed too far in the early 1930s when the rooftop operators started actively poaching fans from the ticket office lines.  Mack responded by building the “Spite Fence,” a solid wall that effectively blocked the view of the field from the buildings across 20th Street.
Looking north on 20th Street with Spite Fence on left

Lawsuits were filed but the “Spite Fence” remained in place throughout the remainder of the use of Shibe Park, later renamed Connie Mack Stadium.
The Current Dispute

Chicago National League Ball Club, Inc. v. Skybox on Waveland, LLC, 1:02-cv-09105 (N.D.IL.)

In this case, the Cubs sued the rooftop owners on December 16, 2002 seeking compensatory damages, disgorgement to the Cubs of the defendants’ profits and a permanent injunction prohibiting the rooftop owners from selling admissions to view live baseball games at Wrigley Field, among other remedies and under several causes of action.  According to the complaint, the Cubs alleged that the defendant rooftop operators “…have unlawfully misappropriated the Cubs’ property, infringed its copyrights and misleadingly associated themselves with the Cubs and Wrigley Field.  By doing so, Defendants have been able to operate multi-million dollar businesses in and atop buildings immediately outside Wrigley Field and unjustly enrich themselves to the tune of millions of dollars each year, while paying the Cubs absolutely nothing.”

In their statement of undisputed facts, the defendants countered that the rooftops had been used to view games since the park opened on April 23, 1914 as home of the Chicago Federal League team and that the Cubs conceded that their present management knew the rooftop businesses were selling admissions since at least the late 1980s. 

In May 1998, the City of Chicago enacted an ordinance authorizing the rooftops to operate as “special clubs,” which allowed them to sell admissions to view Cubs games under city license.  The City wanted their piece of the action and interestingly, the Cubs made no formal objection to the ordinance.  Based on the licensure and lack of any opposition from the Cubs, the rooftop owners made substantial improvements to enhance the experience and to meet new City specifications.

By January 27, 2004, the Cubs had reached a written settlement with owners of 10 of the defendant rooftop businesses which assured that the Cubs “would not erect windscreens or other barriers to obstruct the views of the [settling rooftops]” for a period of 20 years.  The remaining rooftop owners later settled and the case was dismissed on April 8, 2004, just days ahead of the Cubs home opener set for April 12th.
Operative language in para. 7

After the 2004 agreement legitimized their businesses, the rooftop owners made further improvements to the properties.  Long gone are the days that a rooftop experience meant an ice-filled trough of beer and hot dogs made on a single Weber.  The rooftop operations are now sophisticated businesses with luxurious accommodations, enhanced food and beverage service and even electronic ticketing.
As a result of the settlement agreement of Cubs’ 2002 lawsuit, the team now has legitimate concerns that a subsequent lawsuit by the rooftop owners to enforce the terms of the contract could ultimately result in the award of monetary damages to the rooftop owners; cause further delays in the commencement of the construction project due to a temporary restraining order; or, be the basis of an injunction preventing the Cubs from erecting the revenue-producing advertising platforms for the remainder of the rooftop revenue sharing agreement.

It is obvious that the rooftop owners need the Cubs more than the Cubs need them; however, the Cubs wanted their piece of the rooftop owners’ profits (estimated to be a payment to the Cubs in the range of $2-$3.5 million annually) and now the Cubs have to deal with the potential that their massive renovation project will be held up by the threat of litigation over the blocking of the rooftop views. 

Thursday, October 24, 2013

Dodgers Catcher John Roseboro Sues Juan Marichal and Rawlings for On-Field Injuries in Separate Occurrences

Roseboro v. Rawlings Mfg. Co., 79 Cal. Rptr. 567, 275 Cal.App.2d 43 (Cal. App. 2 Dist., 1969)

John Roseboro was the man who assumed the starting catcher’s role for the new Los Angeles Dodgers after Roy Campanella was paralyzed in a single-car accident before the start of the 1958 season.  Throughout his 11 years with the Dodgers, Roseboro won three World Series rings, two Gold Glove Awards and was named to several All-Star squads.  For a lot of people, however, Roseboro might be best remembered as the player that Hall of Fame pitcher Juan Marichal attacked during an August 22, 1965 game against the San Francisco Giants. 

While at bat, Marichal was reportedly angered by one of Roseboro’s throws back to Sandy Koufax coming too close to his head (or grazing his ear) and he snapped, swinging his bat wildly at Roseboro in retaliation.  Marichal reportedly struck him several times, including a blow to the head that resulted in a bloody gash.  The incident can be viewed on YouTube here.

Following the attack, Marichal issued a statement, “First of all, I want to apologize for hitting Roseboro with my bat. I am sorry I did that. But he was coming toward me, with his mask in his hand, and I was afraid he was going to hit me with his mask, so I swung my bat. If he had only said something, I would not have swung. I hit him once, and I am sorry.”  He was suspended for eight games by National League president Warren Giles, missing two starts, and fined $1750 (approximately $12,900 today.)  

Later in the season, Roseboro filed a lawsuit against Marichal for the attack, seeking $110,000 (approximately $815,000 today) in damages - nearly twice the amount of Marichal’s $60,000 salary for the 1965 season.  The case later settled for $7500 (approximately $55,000 today) and Roseboro eventually forgave Marichal publicly. 

This was not the first time that Roseboro had suffered an injury on the playing field that resulted in a lawsuit, however.

What happened that made John Roseboro sue Rawlings?

Having caught the entire first game, Roseboro was behind the plate for the second game of the Sunday doubleheader on April 29, 1962 at Dodgers Stadium against the Pittsburgh Pirates.  A Joe Moeller pitch was fouled off by the batter, breaking a weld at the top of Roseboro’s mask.  The ball entered the mask and struck Roseboro above his right eye.  He was dazed following the occurrence and was taken to the hospital, where he was kept overnight for observation.

Roseboro returned to the lineup on May 10, 1962 and was able to play the remainder of the season, although he claimed to have “bad headaches” that plagued him through 1963 or early 1964.     

The mask that Roseboro was using at the time of the occurrence was a new, lighter weight mask that had been developed by the defendant Rawlings.  Roseboro had used this particular mask at the end of the 1961 season, during spring training in 1962 and in all of the 20 games that Roseboro had played in 1962.  He indicated that in that time, the mask had acquired some typical dents but he inspected it before each game and found no apparent defects.

The employee who was in charge of quality control for Rawling’s products inspected the mask and found that had a different “contour” and was in a different condition than it was when it left the factory.  He claimed there was nothing Rawling’s could do to control the mask after it was obtained by a player and that it had “taken sufficient beating to be much less safe than when it left [Rawling’s] control.”

The employee who gave the mask to Roseboro also testified that the mask was “well used” and “pretty well beat up to stay in use” due to its flattened out appearance.

Who won?

John Roseboro.  Despite the testimony from the Rawlings employees, Roseboro was awarded $20,000 in damages (approximately $125,000 today) for his injuries. 

The victory was short lived, however.  The trial court granted the defendants’ motion for a new trial on the basis that the evidence was insufficient to support the verdict.

The appeal

Roseboro’s claim against Rawlings was on the basis of strict liability.  In order to recover under this theory, it was Roseboro’s burden to show that the subject catcher’s mask was defective at the time it was given to him. 

Rawlings argued that Roseboro’s claim was based on the “simple fact that the mask broke while he was using it in the manner for which it was intended to be used, and nothing more” and that he had no proof that the mask was defective at the time it was delivered. 

Who won the appeal?

Rawlings.  The appellate court agreed with the trial court that Roseboro did not have any evidence that the mask was defective at the time it was given to him.  Therefore, Roseboro was unable to prove a case under the theory of strict liability.

Monday, October 21, 2013

Umpire Gary Darling Sues Lou Piniella for Defamation of Character

Darling v. Piniella, 1991 WL 193524 (E.D.Pa., 1991)

What happened?

The San Francisco Giants visited the Cincinnati Reds for a game at Riverfront Stadium on August 3, 1991.  During the eighth inning and with the Reds trailing 7-3, Reds second baseman Bill Doran hit a ball down the right field line that was initially called a home run by first base umpire Dutch Rennert.  Rennert then asked for help with the call and after conferring with the other umpires, home plate umpire Gary Darling changed the ruling to a foul ball. 

Lou Piniella disagrees with a call

Incensed, Reds manager Lou Piniella charged from the dugout to confront Darling, threw down his hat and kicked dirt over home plate.  Outfielder Paul O’Neill also threw a Gatorade bucket on the field in protest.  Darling tossed Piniella and O’Neill as a result of their tantrums.  The Reds ended up losing 7-3. 
In a post-game interview following the loss, Piniella was alleged to have stated:

(1)   “I feel Darling has a bias against this ball club.”

(2)   “All year, we've never gotten a call from him and don't think we'll get a call from him the rest of the year.”

(3)   “He should be professional enough—if he doesn't like us for whatever reason—to at least call a good game.”

(4)   “It's time he got his act together. As far as I'm concerned he's not a good umpire. He's biased.”

(5)   “When it comes to the Cincinnati Reds, he doesn't call a game the way it’s supposed to get called. We're tired of it.”

(6)   Darling “deliberately makes bad calls against the Cincinnati Reds.”

Gary Darling did not take kindly to these comments and, along with the Major League Umpires Association, filed a defamation action against Lou Piniella just four days later on August 7, 1991

Who won?

Lou Piniella was successful in having the case brought by the Major League Umpires Association dismissed because the law requires that in a case of defamation “the matter must clearly refer to a specific person.”

The case brought by Gary Darling survived, however, and Piniella eventually settled out of court with Darling for an undisclosed amount. 

Additionally, Lou Piniella also issued the following conciliatory statement,  
"The major league umpires are, in my opinion, the finest officials in any sport today. Under difficult circumstances, they acquit themselves with the very highest degree of professionalism and this has earned the respect and esteem of everyone in the game. I have high regard for Gary Darling's integrity and deeply regret comments that may have maligned his character in any way. Like his fellow umpires, he does his utmost day in and day out to fairly and dispassionately get the right call. I may not agree with each and every call, but that does not alter the fact that the major league umpires are essentially simply the best."

Sunday, October 20, 2013

Henry Oberbeck Recovers in Contract Lawsuit Against St. Louis Browns

Oberbeck v. Sportsman's Park & Club Ass'n, 17 Mo.App. 310 (Mo. App., 1885)

What happened?

Henry Oberbeck had a relatively uneventful career in professional baseball, playing for four teams over two seasons as a third baseman, outfielder and pitcher.  At the plate, he compiled a .176 lifetime batting average in 238 at bats and was 0-5 with an earned run average of 5.30 on the mound.  

Oberbeck was signed to a contract with the St. Louis Browns that would pay him a total of $785 (approximately $18,255 today) for the 1883 season lasting from May 23rd through October 31st.  By June 23rd, he had appeared in four games as an outfielder and was hitless in 14 at bats.

He was then informed that the Browns no longer needed his services and was discharged, having been paid only $150 of the agreed upon contract amount.  The Browns refused to pay Oberbeck the remaining salary, prompting him to sue for the balance.

The Browns claimed that there were actually two separate contracts signed, the first of which had not been approved by the American Association.  They claimed that the second contract included the right on the part of the Browns to terminate employment at any time.  Oberbeck denied he had executed the second contract and relied on the fact that the first contract did not allow the Browns to unilaterally cancel his contract.

The case proceeded to trial and the jury was instructed that if they found Oberbeck had signed the second contract, he would not be entitled to recover.  If they instead found that Oberbeck had not signed the second contract, he would be assessed damages in the amount of $635, less any amounts that he had earned or might have earned “by reasonable diligence” between the date of discharge and October 31, 1883.

Who won?

The jury awarded damages to Henry Oberbeck having found that Oberbeck had not signed the second contract.

The appeal

The Browns appealed, claiming that the court erred in its jury instructions by failing to include the possibility that both contracts could be construed together as part of the same contract. 

Who won the appeal?

Henry Oberbeck.  The appellate court found that the jury had been instructed properly and adopted plaintiff’s version of the transaction, which was “borne out by sufficient evidence.”

Oberbeck played professionally in 1884 for the Baltimore Monumentals and Kansas City Cowboys of the Union Association.  He was out of professional baseball by the time this case was decided.

Saturday, October 19, 2013

Ballplayer Kills Umpire Following Game

Young v. State, 10 Ga.App. 116, 72 S.E. 935 (Ga.App. 1911)

What happened?

The defendant, Young, was a member of a baseball team that played a baseball game on a Saturday afternoon.  The deceased, Williams, was umpiring the game and keeping score.

Young claimed that the opposing team had scored three runs; however, Williams had given them five runs, leading to an argument in which “cursing followed.”  Williams started toward the defendant with his hand in his pocket and Young reacted by pulling a gun and shooting Williams, killing him. 

Young was indicted for murder but convicted of voluntary manslaughter and sentenced to five years in prison.

Young appealed the conviction, seeking a new trial. 

How did the court rule?

Young’s request for a new trial was denied and the conviction was upheld.

“Where a baseball player and an umpire become involved in a quarrel over a point in the game, and while the umpire is advancing toward the player with his hand in his pocket the player pulls his pistol and kills the umpire, a verdict finding the player guilty of voluntary manslaughter is not contrary to law, nor without evidence to support it.”

Thursday, October 17, 2013

Roberto Clemente’s Widow Sues F.A.A. Following Fatal Plane Crash

Clemente v. United States, 567 F.2d 1140 (C.A.1 (Puerto Rico), 1977) cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978)
Clemente v. United States, 422 F.Supp. 564 (D.P.R., 1976)

The Fatal Crash

Roberto Clemente was both a remarkable ballplayer and genuine folk hero.  As an outfielder for the Pittsburgh Pirates, Clemente was a perennial All-Star and Gold Glove recipient.  He won four batting titles, was the National League’s MVP in 1966 and the World Series MVP in 1971. 

On September 30, 1972, Clemente stroked a double off of Mets pitcher Jon Matlack to reach the 3000 hit milestone in his final regular season at bat.  After closing out the 1972 season with a playoff series loss to the Cincinnati Reds, Clemente traveled to Nicaragua in November to manage the Puerto Rican All-Stars in the Amateur Baseball World Series.

A 6.2 magnitude earthquake rocked Managua, Nicaragua on December 23, 1972.  Some 5,000 people lost their lives, another 20,000 were injured and over 250,000 were displaced from their homes.  Swayed by the time he had just spent in Nicaragua, Clemente coordinated a extraordinary effort to provide emergency supplies to the victims.  Even after sending three airplane loads to Managua, there were still supplies that needed to be flown to Nicaragua.

Clemente was approached by Arthur Rivera, who offered the services of his DC-7 cargo plane to airlift the remaining relief supplies.  Clemente inspected the plane and agreed to pay Rivera $4000 (approximately $22,000 today) upon his return to Puerto Rico.  

By law, Rivera was to provide a pilot, co-pilot and flight engineer.  Rivera hired a pilot, Jerry Hill, and appointed himself as the co-pilot, despite his lack of certification to co-pilot the DC-7.  He was unable to hire a flight engineer for the flight. 

Unbeknownst to Clemente, the DC-7 had been involved in an accident on December 2, 1972 when a loss of hydraulic power caused the aircraft to leave the taxiway and crash into a water-filled concrete ditch.  After the incident, an airworthiness inspector with the Federal Aviation Administration (F.A.A.) questioned Rivera about intended repairs to the plane.  Mr. Rivera confirmed that he intended to repair the plane and the inspector took no further action.

Thereafter, the damaged propellers were replaced and the engines were run for three hours, showing no signs of malfunction.  The airplane was returned to service by the repairmen; however,  no inspection was conducted by the F.A.A. prior to the ill-fated flight.  In fact, the plane had not even been flown since its arrival from Miami in September, 1972. 

The loading of Rivera’s DC-7 was completed on December 31, 1972.  Clemente decided to personally accompany this flight after having been advised that their prior shipments may not have reached the intended recipients due to governmental interference with the relief efforts.  

The flight plan was filed with the F.A.A. on the morning of December 31st.  At approximately 9:11 p.m., the flight taxied down Runway 7 and was cleared for takeoff at 9:20 p.m.  The weather was good and visibility was at 10 miles.
Upon takeoff, the plane gained very little altitude and at 9:23 p.m. the tower received a message that the plane was turning back around.  Unfortunately, the aircraft did not make it, crashing into the Atlantic Ocean about one and a half miles from shore.  Everyone aboard the plane, including Roberto Clemente, perished in the crash.  He was just 38 years old.

The post-occurrence investigation revealed that there was an engine failure before the crash and that the plane was nearly 4200 pounds over the maximum allowable gross takeoff weight.

Resulting Lawsuit

Roberto Clemente's widow, Vera Zabala Clemente, and the next of kin of the other passengers filed a lawsuit against the United States of America alleging that the F.A.A. employees were negligent under the Federal Tort Claims Act and responsible for the resulting crash.  (The Federal Tort Claims Act is a limited waiver of sovereign immunity that authorizes parties to sue the United States for tortious conduct.) 

Factually, the plaintiffs’ claim was based on the premise that the F.A.A. owed a duty to promote flight safety which was breached by their failure to revoke the airworthiness certificate of the DC-7 after the December 2, 1972 accident; monitor the repair process; and, otherwise discover that the plane was not airworthy, had an improper registration number, was not properly weighted and balanced and did not have a qualified crew.  It was the plaintiff’s contention that had the F.A.A. acted in accordance with their own internal procedures (Order SO8430.20C, “Continuous Surveillance of Large and Turbined Powered Aircraft”), the aircraft would have been denied flight clearance, the deceased passengers would have been advised of the deficiencies and that the plane crash would never have happened.

The United States countered that the F.A.A. did not have any legal duty towards the decedents to “discover or anticipate acts which might result in a violation of Federal Regulations.”  They also claimed that there was no connection between any duty and the fatal crash.

Who won?

The trial court found for Vera Zabala Clemente and the next of kin of the other deceased passengers on the issue of negligence.


The trial court was convinced by the F.A.A. investigative report that the cause of the crash was “overboosting” of the No. 2 engine at takeoff and the fact that the plane was overloaded by more than two tons.  Because the flight crew was inadequate, the situation was such that “…for all practical purposes the Captain was flying solo in emergency conditions.”

Section 6 of Order SO8430.20C called for “continuous surveillance of large and turbine powered aircraft to determine noncompliance of Federal Aviation Regulations.”  Furthermore, a “ramp inspection” was required to determine that the crew and operator were in compliance with the safety requirements regarding the airworthiness of the aircraft as to the weight, balance and pilot qualifications.  Any indication of an “illegal” flight crew was to be made known to the crew and persons chartering the service.  Finally, discovery of such noncompliance was to be given the highest priority, second only to accident investigation.

The trial court found that these provisions of the Continuous Surveillance of Large and Turbined Powered Aircraft order were applicable to Roberto Clemente’s chartered flight and that the decedents were within the class of people sought to be protected under the order.  If the required ramp inspection had been completed, the lack of a proper crew and overloading would have been discovered, Clemente would have been notified and, presumably, he would not have agreed to board the plane and avoided his untimely death.    

The order was held to be mandatory in nature and because the F.A.A. violated its own orders, a failure to exercise due care was evident.  Accordingly, the F.A.A.’s failure to inspect and ground the plane “contributed to the death of the…decedents.”

The appeal

The United States appealed the decision claiming that the trial court erred in its finding of a duty on the part of the Federal Aviation Administration.  The critical question the appellate court was asked to address was whether the F.A.A. staff in Puerto Rico had a duty to inspect the subject DC-7 and warn the decedents of “irregularities.” 

The appellate court acknowledged that the Federal Aviation Act was enacted to promote air safety but that this “hardly creates a legal duty to provide a particular class of passengers particular protective measures.”  Further, the issuance of the Continuous Surveillance of Large and Turbined Powered Aircraft order was done gratuitously and did not create a duty to the decedents or any other passengers.

The court ultimately held that the order created a duty of the local inspectors to “perform their jobs in a certain way as directed by their superiors.”  The failure to comply with this order, however, was grounds for internal discipline but did not create a cause of action based on negligent conduct against the F.A.A. 
It is well-founded that the pilot in command has responsibility to determine that an airplane is safe for flight.  There was nothing in this F.A.A. directive that shifted this responsibility to the federal government.

Further, the court found that the failure of the F.A.A. to inspect the plane did not add to the risk of injury to the passengers and there was no evidence that any of the deceased had relied the F.A.A. to inspect the aircraft prior to takeoff or even knew about Order SO8430.20C.

Who won the appeal?

The United States.  The finding of negligence on the part of the Federal Aviation Administration was reversed.

In its opinion, the appellate court concluded, “The passengers on this ill fated flight were acting for the highest of humanitarian motives at the time of the tragic crash.  It would certainly be appropriate for a society to honor such conduct by taking those measures necessary to see to it that the families of the victims are adequately provided for in the future.  However, making those kinds of decisions is beyond the scope of judicial power and authority.  We are bound to apply the law and that duty requires the reversal of the district court's judgment in favor of the plaintiffs.”

The plaintiff’s request that the case be heard by the United States Supreme court was denied.