Last month, Oakland A’s fan Gail Payne filed a class-action lawsuit against Major League Baseball in an effort to compel the league to provide more protective netting at all ballparks, including minor-league parks:
The Plaintiff and the Class are entitled to injunctive relief requiring Defendants, among other things, to adopt corrective measures regarding the implementation of: (1) a rule requiring all existing major league and minor league indoor and outdoor ballparks to be retrofitted to extend protective netting from foul pole to foul pole by the beginning of the 2016-2017 MLB season; (2) a rule requiring any newly constructed ballpark intended to house major or minor league baseball games, to include at a minimum this amount of netting; and (3) a program to study injuries and the rates of injuries amongst spectators, including the type and manner of injury and at what locations in ballparks they occur, in an effort to continually reevaluate whether additional measures should be taken, so that precautionary measures can continue to evolve as the sport continues to evolve.
As Nathaniel Grow wrote for FanGraphs, Payne’s lawsuit has a relatively low likelihood for success, due to the “several strong legal defenses” available to MLB and the possible applicability of “the so-called ‘Baseball Rule,’ a doctrine historically shielding MLB teams from legal liability for injuries incurred by fans from foul balls or broken bats.” (Payne attached to her complaint a “sample list of injuries suffered to spectators located in the unprotected areas along first and third base between the foul poles, during official play” that identifies about eighty-five such injuries since the early 1900s.)
If the case does go forward, though, it could present a few interesting questions. One is whether the U.S. District Court for the Northern District of California, where Payne’s case is pending, will apply the Baseball Rule. Last summer, the Georgia Court of Appeals refused to do so, affirming a trial judge’s rejection of a request by the Atlanta Braves (joined by the office of then-MLB Commissioner Bud Selig) to apply the rule and dismiss a lawsuit brought on behalf of a child whose skull was shattered by a foul ball at a Braves game.
A second question arises out of the procedural nature of Payne’s complaint, which seeks class-action treatment, and involves the means available to dissenters in the proposed class for challenging Payne’s position. Unlike the more popularly familiar “opt-out” class-action lawsuits, for which you may have received a coupon because you purchased overpriced energy drinks or music CDs, Payne’s proposed class action will proceed, if at all, under a different rule as a “mandatory” class action. Practically, this means that, if the court certifies Payne’s case as a class action, the final result of the case will bind every member of the class, which Payne broadly defines as all MLB season-ticket holders with seats “in any unnetted/uncovered area between home plate and the foul plates [sic] located at the end of the right and left field lines . . . .” As Grow suggested in his FanGraphs post, if the court grants her request for class certification, Payne could find herself with some unhappy fellow class members, as it seems likely that many MLB season-ticket holders with seats in what Payne’s complaint dubs “the Danger Zone” prefer their completely unobstructed views of the action and do not agree with Payne that the league should extend netting all the way to each foul pole. Because the proposed class is of the mandatory variety, though, dissenting class members could not simply opt out and control their own legal destinies. While yet another rule may allow those season-ticket holders who don’t want additional netting requested to intervene in the case and make their objections known, they must take affirmative steps to do so, and they must act in a timely fashion. A possible alternative, which Grow mentioned, is that MLB itself may point to this probable intra-class division in the course of its anticipated argument that the court should not allow the class action to proceed, thus relieving the dissenting class members from the need to do so. (On this point note that, on Monday, MLB filed a routine Disclosure of Interested Entities, which listed only the league’s thirty teams and their owners as among those entities having “a financial interest in the subject matter in controversy [or] having a non-financial interest in that subject matter . . . that could be substantially affected by the outcome of this proceeding.”) MLB’s answer to Payne’s complaint is due on October 2, 2015.
Third, and the reason for taking a look at this case over here at TechGraphs, Payne’s complaint raises a question of practical technology: How can we keep baseball fans safe while affording them the best available opportunity to enjoy baseball games? While the response from Payne’s legal and ideological opponents is that the fans themselves (and alone) bear the burden of ensuring their safety, an increase in fan-protection measures of some sort seems likely. MLB teams, including the aforementioned Braves, already employ extended netting during pregame activities, and further severe fan injuries could mobilize popular sentiment and personal injury lawyers to target MLB’s pockets, rather than merely its conscience.
To some, the pushback against increased safety netting should sound as a cry for technological innovation. As attitudes about netting change, a manufacturer who could produce stadium nets with reduced visual obtrusiveness seemingly would find himself or herself well-positioned to enter the market. (I contacted representatives for multiple MLB teams and netting manufacturers in connection with this story. None offered substantive comment, although one, Tex-Net, Inc. owner John Scarperia, indicated that he thought that the nets in use today already were as unobtrusive as possible while still providing the requisite degree of protection.)
And attitudes are likely to change. In 2002, thirteen-year-old Brittanie Cecil died as a result of injuries sustained when a deflected hockey puck struck her in the head during the course of an NHL game between the Calgary Flames and Columbus Blue Jackets. Three months later, the league, having completed a study of the issue, decided to significantly expand fan safety measures in its arenas by installing large safety nets at each end of the ice.
As Yahoo! hockey blogger Greg Wyshynski recalled in a post marking the tenth anniversary of Cecil’s death, negative fan reaction to the netting in 2002 was substantial and precisely in line with the remarks from 2015’s opponents to increased baseball netting. From the article announcing the new nets: “Some Blackhawks season ticket-holders said during the season that they would oppose having netting installed because it would interfere with their view of the game.” From a (oddly illuminated) contemporary editorial:
If spectators paid attention to the game, safety wouldn’t be a concern.
At the MCI Center in Washington, D.C., 122 fans were injured in 127 games, most of them weren’t serious, according to a report by two emergency room doctors. Meaning spectators were trying to be heroes by catching the puck and cutting their hand or something minor.
Don’t try to be heroes when the puck is traveling at 100 miles per hour; just duck.
The nets are good news to some people, such as the architects that build new arenas and stadiums. Now, with the nets, spectators will be able to see ice rinks where there are only 15-20 rows of seats behind the end zones and the rest near center ice. Taller and wider stadiums will be built as soon as the word gets out that no one can see through the nets.
Even Doug MacLean, then the general manager for– of all teams, the Blue Jackets– received angry mail: “It was shocking to me. When we put the nets up in Columbus [where Cecil was killed], I had some unbelievably nasty letters from season ticket-holders asking me how I could do that to their sight-lines.”
Wyshynski, who admitted he too was an early opponent of the netting, revisited the story ten years later not so much to chide or mock those early opponents but to observe just how much of an afterthought the netting had become since the initial outcry over its installation: “The purists bristled at the end of a tradition. Debates raged … and then a decade later, yesterday’s hot-button debate is today’s societal norm.” Should MLB ultimately follow the NHL in mandating new safety netting, it isn’t too difficult to imagine that, ten years down the road, your favorite baseball writer on whatever future version of TechGraphs exists at that time will have something similar to note.