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| David Postel |
I’ve got joy to spare, though: My beloved Guardians are in the playoffs for the sixth time in nine years. Here, then, are a few stories about people around the old ball game crying foul about something other than whether a ball is in play or not. I hope this provides some respite to those among us entering fall and winter with nothing to more than the age-old mantra “Wait till next year” to console themselves.
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Baseball has been described as America’s “national pastime” and “the great American tragedy.” (Any text quoted in this section is from or in Flood v. Kuhn, 407 U.S. 258 (1972)). So we start, fittingly, with Flood v. Kuhn, where the U.S. Supreme Court considered whether Major League Baseball’s “reserve system,” which limited players’ ability to determine which team they would play for, violated U.S. antitrust law.
The appellant, Curt Flood, was an all-star who challenged this system after he was traded to the Philadelphia Phillies by the Cincinnati Reds. Flood, the court explained, “was not consulted about the trade” and received notice of it only after the fact. On receiving the news, Flood wrote to the league’s commissioner protesting the trade and asserting that he was not “a piece of property to be bought and sold.”
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The court — in a decision that describes the game’s 19th-century origins, details the “ensuing colourful days,” and lists more than a page’s worth of “names … that have sparked the diamond and its environs” — correctly held that professional baseball is indeed a business engaged in interstate commerce.
Even so, the court refused to find the antitrust law applicable in light of an earlier decision, Federal Baseball, which held that professional baseball consisted of the “purely state affairs” of “giving exhibitions of baseball.” The “personal effort” of the ballplayers delivering these “exhibitions,” according to Federal Baseball, was “not related to production” and thus “not a subject of commerce” generally, let alone interstate commerce.
This outcome in Flood was all the more surprising in view of intervening decisions holding that professional basketball, football, and boxing were all business in interstate commerce.
But times were different then, and at that time the court respected stare decisis. So it stood by the “aberration” that was Federal Baseball and explained that doing so was a “recognition and an acceptance of baseball's unique characteristics and needs.” Indeed, according to a Congressional report cited in the decision, “Baseball's history shows that chaotic conditions prevailed when there was no reserve clause.” Commentary by the trial court judge was blunter still. He took judicial notice that “baseball is everybody’s business” and, upon observing that “baseball is on higher ground,” remarked, “[I]t behooves everyone to keep it there.” Q.E.D.
MLB’s victory was short-lived, as the reserve system fell out of place soon after the decision. For some time since, players under contract with a team have been able to arbitrate disputes about their salary with that team. The player and team each propose a number, and the arbitrator selects one or the other. Even lawyers who are not fans may be familiar with this: We call it baseball arbitration.
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After winning back-to-back World Series titles in 1992 and 1993, the Blue Jays failed to make the playoffs for two decades. In 2015, they reached the ALCS and returned again in 2016. Not everyone was happy that year, though, for their opponent was the team formerly known as the Cleveland Indians.
Douglas Cardinal was one of those people. Cardinal, a member of the Siksika Nation, brought an application for an injunction to prevent the “Cleveland Team” from displaying the word “Indian” or the “Chief Wahoo” logo within Canada. (Any text quoted in this section is from the court’s decision in Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929.) Cardinal sought similar relief to prevent Rogers and MLB from displaying or broadcasting the team’s name or logo. He argued that the use of the name and logo constituted discrimination and harassment in the offering of services, “namely the provision of professional sports entertainment.”
The court heard the application — on an urgent basis — just hours before the Jays’ first home game in the series.
It found that Cardinal satisfied the first part of the test for an injunction by raising serious issues to be tried on whether the ballgame represented a service and whether the name and logo were discriminatory or harassing. The Cleveland Team itself, the court noted, “essentially concede[d] that these issues deserve to be discussed and debated.” It had even “conduct[ed] polling with respect to the issue, broadened the use of its other logos and facilitated protests at its home stadium.”
Still, the court dismissed the application. It found that Cardinal had not shown irreparable harm (the second part of the test) in part because the Cleveland Team had, by then, “played approximately 200 games in Toronto since the Toronto Blue Jays joined the league in 1977.” In contrast, the court explained, allowing the relief sought “would materially prejudice the respondents”: “The Cleveland Team’s uniforms, the broadcast and the signage at the Rogers Centre would all have to be significantly changed three hours or less prior to the game.”
These same considerations, in the court’s view, also tipped the balance of convenience (the final part of the test) in favour of the respondents.
There is, in baseball, a concept known as a sacrifice hit, where a batter advances a runner while making an out on a batted ball. Cardinal’s application was a sac hit of sorts. He may not have received the relief sought, but he advanced the runner. The application made international news and added to the dialogue on the name and logo. That runner eventually scored: The team changed its name in 2022 to the far less controversial Cleveland Guardians.
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“Keep your eye on the ball” is advice oft repeated to baseball players. Sometimes a much, much bigger ball than the one in play — the sun — makes this difficult.
So it was for George Black during a slo-pitch softball game outside of Hamilton in 2003. Black “a baseball player of considerable experience” had been playing for roughly 35 years and also spent roughly 20 coaching and managing. (This and the later quoted text in this section come from the Court’s endorsement in Black et al. v Slo-Pitch National Softball Inc., 2010 ONSC 1837.) During the game in question, he was struck by a line drive while playing third base after he lost sight of the ball in the sun.
Black sued the operator of the facility where the game took place, Dofasco, alleging that it failed to take reasonable steps to prevent injuries like his.
A good sport, Black gamely conceded that being hit by a ball is a risk in baseball, so Dofasco moved for summary judgment.
It led evidence from an expert in sports architecture, who observed that baseball fields are usually laid out so the sun is in the fielders’ eyes, rather than the batter’s. (It is from this that we get the word southpaw to describe lefthanded people, because a pitcher’s left hand, while standing on a mound in field laid out this way, faces south.) In the expert’s opinion, providing additional shading from the sun would have been “impractical.”
Black countered with photographs showing screens that Dofasco added to the diamond after his injury to provide greater shading. Black also led evidence of how other parks in the area used similar sunscreens.
The court dismissed Dofasco’s motion in view of all this, finding there were triable issues about the standard of care and whether Dofasco met it.
Westlaw and CanLII do not reveal how Black’s case ended, but I tip my cap to Black in any event. It appears from the decision that Black had returned to play after the injury. Perhaps this should be unsurprising. Baseball is a game where failure seven out of 10 times counts as success. A lifer like Black naturally had more than enough grit to dust himself off and get back in the game.
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Baseball, we are told in Flood, is “big business that is packaged with beer.” The combination has not always been pretty. There was Cleveland’s infamous “Ten Cent Beer Night” in 1974, which (and I can’t do better than Wikipedia here) “culminated in a riot” that saw fans throw “a vast array of objects, including cups, rocks, bottles, batteries from radios, hot dogs, popcorn containers, and folding chairs” onto the field. And who can forget Game 5 of the 2015 ALDS where Blue Jays fans littered the field with beer cans after a controversial call?
Ottawa Field, formerly home to a minor league ball club in Canada’s capital, saw a bit of beer and ball controversy itself in the 1990s. (This is as described in Tartan Development Corp. v. Ottawa (City)], 14 O.R. (3d) 747, also the source of any quoted text that follows.) A lessor of a suite at the stadium, Tartan, got into a dispute with the City of Ottawa (the stadium’s owner) about its guests’ ability to bring their own beer into Tartan’s suite. Tartan’s guests had been able to do so during the park’s inaugural season, but the next year the city said that guests could only bring nonalcoholic beverages.
While Tartan’s lease on its face permitted Tartan’s guests to bring their own alcoholic beverages, it also required strict compliance with provincial legislation, including the Liquor License Act of Ontario. The case, then, turned on whether Tartan’s suite was a “private place” within the meaning of the Act. The court, assisted by case law “dusted off” by the city, held that the suite was, in fact, a public place and, as such, subject to the Act’s restrictions.
The doctrinal analysis, candidly, is not particularly riveting, but one comment stands out. The court noted that, under a contrary holding, the “rule of stopping sales after the second inning of a double-header might not sit well with ordinary ticket holders who have to watch private boxes slaking their thirst from the second to the seventh inning on private stocks.” That, I say, is a sound consideration. A situation like that might end of with a riot even bigger than Ten Cent Beer Night.
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It has been more than 75 years since the Cleveland Nine clinched a World Series title. If, yet again, this isn’t their year, I hope at least the playoffs can produce some lawsuits to give me more to write about. For I'm worried that the piece I have on deck — a textual and purposive interpretation of baseball’s rules about balks — might be a free agent for a while.
David Postel is a civil litigation associate at Henein Hutchison Robitaille LLP, where he has a diverse practice in all manner of contract, employment, estates and tort-related litigation. Postel is also a lifelong lover of baseball and an annually heartbroken fan of the Cleveland Guardians. His dream is to one day be commissioner of baseball and would propose, as a first order of business, having Pete Rose inducted into the Hall of Fame.
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