Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES NEWS: MLB allegedly touted ballpark safety, despite known risks to spectators, (Jul 14, 2015)

By Greg Hammond, J.D.

The Office of the Commissioner of Baseball, doing business as Major League Baseball (MLB), has been named in a class action complaint, seeking injunctive relief that requires the MLB to implement new rules extending protective netting from “foul pole to foul pole.” The complaint, filed in the U.S. District Court for the Northern District of California, alleges that the MLB misled consumers concerning the safety of ballparks, despite significant, known risks to spectators from errant balls and broken bats (Payne v. Office of the Commissioner of Baseball, July 13, 2015).

Consumer Gail Payne filed the class action complaint against the MLB, contending that 1,750 spectators are injured each year by errant balls at major league games. This, according to Payne, means that a spectator is hit at least twice every three games, a more frequent occurrence than when a batter is hit by a pitch. Moreover, Payne alleges that the change from ash bats to maple bats has greatly increased the risk of spectator injury, because maple bats have a tendency to “explode and send multiple shrapnel-like pieces in indiscriminate directions.”

The complaint sets forth four causes of action for negligence, fraudulent concealment, and violations of California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA). Count I claims that the MLB has acknowledged its duty towards the class to supervise, regulate, monitor, and provide reasonable and appropriate rules to minimize the risk of injury to spectators. However, Payne claims the MLB has been careless and negligent by breaching that duty of care by failing to provide adequate netting; failing to ensure enough seats under existing netting; failing to disclose the special risk of injury to fans sitting along first and third base lines, between the poles; failing to disclose the special risk of injury from shattered bats; failing to promulgate rules and regulations to adequately address the dangers; failing to disclose that players requested adequate netting; failing to promulgate rules and regulations concerning minimum distance from field of play; misrepresenting ballparks as safe and family friendly; and concealing pertinent facts.

Under the UCL claim, Payne alleges that the acts engaged in by the MLB are fraudulent and show that the pattern of untruthful statements, false representations, concealment, and intent to mislead were all part of a scheme to mislead, and that these acts have deceived and are likely to deceive members of the public, along with Payne and the putative class. Specifically, Payne claims that the MLB made false statements and assurances concerning the priority of safety, but was aware of the incidence of shattered bats and the readily available and inexpensive protective measures that have already been in use since the turn of the century.

Lastly, the CLRA claim asserts that by systematically holding out MLB games and unprotected areas of ballparks as safe, the MLB represented that an MLB game at an MLB-sanctioned ballpark had a characteristic that it did not have—that it was of a particular standard or quality. However, the MLB allegedly did not disclose that part of the reason for the reduced ticket price of unprotected seats is related to their unprotected nature, Payne asserts, and that the MLB inserted an unconscionable assumption of risk provision in the contract entered into when a ticket is purchased, despite its superior knowledge that it was unreasonable and against public policy to ask spectators to contract away a risk that is impossible to avoid due to the physical limits of human reaction time.

Payne seeks injunctive relief requiring the MLB to adopt corrective measures concerning 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 among 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.

Payne additionally seeks certification of the proposed class; designation as representative of the proposed class; and an award of prejudgment interest, costs, and attorney fees.

Attorneys: Jeff D. Friedman (Hagens Berman Sobol Shapiro LLP) and Robert C Hilliard (Hilliard Muños Gonzales L.L.P.) for Gail Payne.

Companies: Office of the Commissioner of Baseball

News: StateUnfairTradePractices CaliforniaNews