Legal scholars and others have long used games and sports to elucidate points of law. Consider three examples. In perhaps the most influential English-language book on general jurisprudence, The Concept of Law, H.L.A. Hart cast light on the scope of judicial discretion by asking whether a referee is bound by the same rules that players would apply in the absence of an official. My colleague Professor Robert Hillman took the occasion of the 1997 NBA playoffs—during which several key players for the New York Knicks were suspended for violating the letter of a rule forbidding leaving the bench during an altercation—to elaborate the differences between strict rules and flexible standards. And then-Judge John Roberts famously compared the job of a Supreme Court Justice to that of a baseball umpire calling balls and strikes during his confirmation hearing over ten years ago.
Baseball is an especially rich source of examples because it mixes highly detailed rules with a large area of discretion—as critics of the balls-and-strikes metaphor have noted by reference to the variability of the strike zone. Indeed, sometimes one can learn a great deal about principles of law by examining just a single baseball play. As I shall explain, the recent collision between Los Angeles Dodger Chase Utley and New York Mets shortstop Ruben Tejada in Game 2 of the National League Division Series holds lessons for several broader issues in the law.
The Play
In the bottom of the seventh inning of Game 2, with the Mets leading the series 1-0 and leading the game by a score of 2-1, Utley slid into Tejada to break up what could have been an inning-ending double play.
He succeeded, and then some. Tejada was upended by the force of Utley’s slide, which broke Tejada’s leg and prematurely ended his season. Although Utley was initially ruled out, that call was reversed when the instant replay showed that Tejada had not stepped on second base.
Instead of the inning ending with the Mets still in the lead, the Dodgers were able to score four runs before the Mets recorded another two outs. The Dodgers went on to win the game and even the series. At the end of Game 2 it appeared that Utley’s rough play might be a crucial turning point.
Although the Mets would eventually win the series 3-2, they continue to play without Tejada. His replacement, Wilmer Flores, is a quite capable shortstop, but proceeding without Tejada’s services is nonetheless a setback—and that is to say nothing of the potential impact of Tejada’s injury on his future career.
As for Utley, Major League Baseball (MLB) suspended him for two games for violating MLB Rule 5.09(a)(13), which forbids a baserunner from intentionally interfering with a fielder attempting to make a throw. Utley appealed and his appeal will be heard today. If his appeal fails, he will serve his suspension at the beginning of next season. In the meantime, the Tejada-less Mets are battling the Chicago Cubs for the right to represent the National League in the World Series.
While most baseball fans have moved on from the Utley-Tejada case, legal scholars can mine it for multiple lessons about the regulation of just about any human activity.
Rules as Written Versus Rules as Enforced
Right off the bat (so to speak), readers might be surprised to learn that Utley broke a rule by sliding into Tejada. With fewer than two outs, a runner from first base routinely slides to break up a double play by interfering with the ability of either the shortstop or the second baseman to make an unimpeded throw to first. Anyone who has seen more than a handful of baseball games will have seen a slide aimed at breaking up a double play.
And yet, the play violates the rule as written. By suspending Utley for violating Rule 5.09(a)(13), MLB appeared to be tacitly acknowledging that Utley’s slide should have been ruled impermissible during the game. But if so, then why are players routinely permitted to get away with sliding into second base to break up a double play?
The answer is that the law on the books is not necessarily the law as enforced. Think about speed limits. Every time you drive 57 miles per hour in a 55 mph zone, you break the traffic law, but you will not be stopped. Instead, motorists know that they can drive at least a few miles per hour over the speed limit without risking being stopped. Police usually enforce the speed limit only against drivers who flagrantly violate it.
More generally, to know the law, it is not always sufficient to know what the relevant statute, ordinance, or regulation says. One must also know how the authorities enforce and how the judges interpret it. Sometimes, as with speed limits, the difference between law on the books and law in the streets is common knowledge. But in other areas of law, especially highly specialized ones, it is necessary to consult a skilled attorney to learn what the law “really” is.
Divining Intentions
Even acknowledging that MLB Rule 5.09(a)(13) will only be enforced in the case of egregious violations, what made Utley’s slide egregious? After all, neither the umpire on the field nor the officials in the replay booth thought to call Utley and Kendrick out for interference in violation of Rule 5.09(a)(13). If the slide did not initially appear to be especially egregious—the equivalent of driving 100 mph in a 40 mph zone—why was it ruled a violation the next day?
Perhaps the answer is that the additional time gave MLB chief baseball officer Joe Torre—who made the decision to suspend Utley for violating the rule—the opportunity to review all of the evidence as carefully as possible. Rule 5.09(a)(13) only forbids “intentionally interfer[ing]” with a fielder’s ability to make a play, and intentions can be notoriously difficult to discern.
The law nonetheless routinely requires judges and juries to determine intent. Intent can be the difference between a crime and an accident. It can be the difference between discrimination in violation of the Fourteenth Amendment of the federal Constitution and lawful disparate impact. Intent can be the difference between regrettable but permissible “collateral damage” and war crimes.
In each of these and the many other circumstances that call for a determination of intent, the alleged perpetrator often claims that he acted with a pure heart. Despite such protestations, illicit intent can sometimes be inferred from objective facts and circumstances. Did Torre carefully sift the evidence to draw an inference of intent that was not initially clear?
A baserunner who slides within the rules aims to get to the base as quickly as possible, while stopping without overrunning the base and thus making himself vulnerable to a tag. Thus, a typical permissible slide will start about five feet from the base and head towards the base. Yet Utley began his slide when he was even with the base and aimed himself to the center-field side of the base, at Tejada, not the base. Reviewing the film repeatedly the next day, Torre undoubtedly concluded that Utley’s intent was to interfere, not to make it safely to second base.
Yet the fact that Utley intended to interfere with Tejada’s ability to complete a double play was obvious as the play was happening. Indeed, that is always the intent of a lead baserunner who slides into second base when the ball clearly beats him there. The whole premise of disciplining Utley is that he did something different from the typical baserunner who slides to break up a double play. Intent to interfere cannot be that something different.
Although Rule 5.09(a)(13) forbids all intentional interference with the fielder’s play, perhaps Torre found that Utley intended not merely to break up the double play but to injure Tejada. However, Torre specifically disclaimed any such conclusion. When Torre announced the suspension he said, “I sincerely believe that Mr. Utley had no intention of injuring Ruben Tejada.” Accordingly, the decision to discipline Utley logically cannot have been based on a showing of an intent to interfere or an intent to injure.
Risk, Purpose, and Consequences
If intent does not hold the key to Utley’s suspension, what does? Although Torre did not say this exactly, it is possible that he concluded that the kind of slide Utley executed, while not intended to injure, created an unreasonably high risk of injury.
Rule 5.09(a)(13) does not expressly refer to injuries, but the official commentary that accompanies it states that it aims “to penalize the offensive team for deliberate, unwarranted, unsportsmanlike action by the runner in leaving the baseline for the obvious purpose of crashing the pivot man.” It is easy to see in the Rule an animating purpose to protect the safety of the fielders. As Professor Hillman’s discussion of the NBA’s leaving-the-bench prohibition explores, in a close case, it may be appropriate to apply a rule more strictly if violation of the rule implicates the rule’s animating purpose.
Or perhaps the explanation for Torre’s decision to discipline Utley is simpler still. Perhaps Torre disciplined Utley because he broke Tejada’s leg. Even though it was immediately apparent during the game that Tejada was injured, the extent of his injury and the impact of the play on the game were not apparent until later. Put differently, in deciding to suspend Utley, Torre might well have been influenced by the consequences of Utley’s conduct rather than the conduct or its riskiness standing alone.
Is that fair? Neither Rule 5.09(a)(13) nor the official commentary expressly refers to the damage done by a baserunner as a standard for determining whether he interferes with the fielder. Moreover, it is possible to slide into second base to break up a double play and put the fielder at risk but, through good luck, to cause no injury. Why should Utley’s (and of course Tejada’s) bad luck factor into the determination of whether Utley’s conduct merited punishment?
The short answer is that consequences count, even when they are a matter of luck. If a negligent driver takes her eyes off the road and hits a guardrail, she may have to file an insurance claim for damage to her vehicle; if she takes her eyes off the road and hits a child, she may end up spending years in prison for negligent homicide. If a bar fight ends in bruises, the participants may end up charged with misdemeanor disorderly conduct; if a punch topples a combatant who hits his head on the bar and dies, the person who threw the punch may be guilty of second-degree murder.
Similarly, tort law includes the principle that “you take your victim as you find him.” Thus, even if the tort one commits is not of the sort that ordinarily causes serious injury, if the particular victim is especially vulnerable—what the case law and literature sometimes call an “eggshell plaintiff”—the tortfeasor is out of luck and must pay the full measure of damages.
Perhaps it is unfair to punish people more, or to make them pay more, for acts that caused serious harm only as a result of bad luck. If so, however, then a great many people are suffering a whole lot more unfairness than Chase Utley will suffer if he ends up serving his two-game suspension.
Baseball is just a game, but the lessons it teaches apply to much of life and law.
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