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Vol. 5, Iss. 4
March 30, 2016

Opening Day Upon Us: Update On The Major League Baseball “Foul Ball Litigation”


Opening day of baseball season is on the doorstep. So this is the perfect time to check in on the status of Payne, et al. v. Major League Baseball, pending in the Northern District of California. Regular readers know that I have a keen interest in sports litigation involving fans’ interests and rights. Payne falls into this category.

One of the most popular cases in the fan interest category are those involving spectators injured by foul balls at baseball games. They are legion and date back a century. In general, the legal system has almost always denied compensation to spectators injured by foul balls.

In July 2015, suit was filed in a California federal court that took a different tack: An Oakland A’s season ticket holder – not hit by a foul fall -- sued Major League Baseball, and its Commissioner, Rob Manfred, seeking to compel them to expand the area in stadiums that are within the zone of protective netting.

I was thrilled to publish an Op-Ed, in the July 24th issue of The Wall Street Journal, discussing the case and why the suit should fail. I hope you’ll check it out here:


Here is what’s happening in Payne v. Major League Baseball. Payne filed an Amended Complaint (adding two plaintiffs and now naming all Major League Baseball teams as defendants). Major League Baseball filed a Motion to Dismiss. The Motion is fully briefed and the court was scheduled to hear oral argument on March 22.

The briefs are lengthy and MLB raised numerous arguments, generally related to the plaintiffs having no Article III standing (plaintiffs fail to adequately allege a concrete and particularized injury that is imminent), lack of personal jurisdiction against the non-California teams; venue issues (most of the teams are not located in the Northern District of California) and failure to allege the necessary elements for the asserted causes of action.

I raised the plaintiffs’ “lack of standing” in my Wall Street Journal Op-Ed. That’s not a brag. Lack of standing here is so obvious that My Cousin Vinny could have figured it out.

The most interesting development in the case, as pointed to by the plaintiffs, is that in December 2015, Major League Baseball, after an in-depth study, issued recommendations concerning fan safety, including this one: “Clubs are encouraged to implement or maintain netting (or another effective protective screen or barrier of their choosing) that shields from line-drive foul balls all field-level seats that are located between the near ends of both dugouts (i.e., the ends of the dugouts located closest to home plate, inclusive of any adjacent camera wells) and within 70 feet of home plate. The Commissioner’s Office has retained a consultant specializing in stadium architecture and protective netting to assist interested Clubs in implementing this recommendation.”

I believe that the plaintiffs’ case is a hail Mary and a slam dunk for Major League Baseball. But if my NCAA Tourney bracket is any indication of my predictive skills….


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