<em>Legally</em> <strong>Speaking</strong>


Read Jim's 2010 Baseball Winter Meetings presentation on ballpark liability, the Anheuser-Busch sponsorship lawsuit and health care reform for teams.

Read Jim's tips on sponsorship and naming rights agreements, presented at the 2010 Minor League Baseball Promotional Seminar.

Read Jim's presentation on ballpark liability, ballpark leases and Minor League Baseball-regulated transactions at the 2009 Baseball Winter Meetings.

Read Jim's 2008 Baseball Winter Meetings presentation on ballpark liability and ADA amendments.


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Is the baseball rule headed for change?

Discussion of the so-called baseball rule, which grants teams immunity from lawsuits involving ball and bat injuries to fans, has been thrust into the national spotlight because of the severe head injury suffered by a woman struck by a broken bat at Fenway Park June 5.

Many states, including Massachusetts, honor the baseball rule. But in the last two years, at least one court has declined to recognize it. The Idaho Supreme Court sent back to trial a case of a fan who lost an eye after being struck by a foul ball at a Boise Hawks game. The rule places upon the fans the duty to protect themselves from hazards such as being struck by a foul ball or a broken bat, as long as the team takes precautions such as installing netting in front of the most dangerous sections of the ballpark.

The Boston situation could have some impact. First, the timing may be right. Rumblings that ballparks should have a greater duty to protect fans—such as extending netting past the dugouts, instead of just behind home plate—have increased. Second, this latest incident occurred in one of the East Coast's media centers, and was readily reported nationwide before the court of public opinion. It generated headlines such as "Scary Fenway incident puts fan safety in spotlight" and "Time for MLB to make netting changes...."

Moreover, the Fenway incident has a sympathetic victim, Tonya Carpenter, 44. News photos not only showed Carpenter being taken away on a stretcher, but also pictured a young boy, presumably her 8-year-old son who attended the game with her, being comforted by a friend. It was reportedly his first Red Sox game. And the family supplied a picture of the victim with an engaging smile. Intentionally or not, it raised issues of whether the accident would leave her disfigured.

The baseball rule took an odd twist in the case of John Coomer, who suffered an eye injury from a hot dog thrown into the stands by the Kansas City Royals' mascot, Sluggerrr, in 2009. A county jury in 2011 found Coomer was 100 percent at fault, but on appeal, the Missouri Supreme Court earlier this year sent the case back, saying promotional activities were not protected by the baseball rule. A second jury decided on June 17 that neither Coomer nor the Royals were at fault.

It remains to be seen if the thinking among the courts will evolve one way or another. A point of contention is whether the disclaimer on the back of baseball tickets and ballpark signage should absolve teams of responsibility, while such disclaimers do not always work in other venues, such as parking lots or concerts. In any case, the trend seems to be that teams will be held more accountable for protecting fans.

Lawsuit shows details matter in stadium leases

The city of Avon in Lorain County, Ohio has sued Avon Baseball LLC, the owner of the Lake Erie Crushers independent league baseball team, over net advertising receipts from an electronic marquee along Interstate 90.

But what seemed like a cut-and-dried case of whether one party owed something to the other, the focus became what the stadium lease agreement said about how to settle disputes. The episode offers a lesson in the care that must be taken when drawing up stadium leases and each party's understanding of the terms, including procedural ones.

The city of Avon, which initially filed the lawsuit in Lorain County Common Pleas Court, claimed that the Crushers' owner defaulted in marquee advertising payments dating back to 2011. Meanwhile, owner Avon Baseball removed the lawsuit to the U.S. District Court for the Northern District of Ohio, based upon out-of-state diversity with Avon Baseball, which is located in Wilmette, Ill.

Federal Judge Patricia A. Gaughan, however, dismissed the suit in mid-April over language in the lease that she ruled provided first for mediation and arbitration before any dispute could be taken to state or federal court. The judge left open the right of the city of Avon to reinstate the suit if the alternative dispute resolution does not resolve the issue.

And that is, has Avon Baseball accounted for and paid to the city of Avon all of the net marquee revenues for the electronic sign that reaches traffic on Interstate 90? The ballpark lease, attached to the complaint as an exhibit, provides that the net marquee revenue must be paid to the city of Avon for deposit into a fund for improvements to the ballpark as needed.

The court documents reveal that the two sides have been talking. We will see what more it might take to resolve.


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