A Legal Perspective on Umpire’s Blown Call

Wednesday, June 23, 2010

Page 6

IN MY OPINION (Column)

A Legal Perspective on Umpire’s Blown Call

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Most of us had never heard of Armando Galarraga before June 2, 2010. That night, he pitched a perfect game on behalf of Detroit, although he did not get credit for it. Instead, he had to settle for a win against Cleveland, but not the fame and glory which comes with a perfect game, a feat only accomplished by 20 players in baseball history.

With two outs in the ninth inning, an umpire who must himself have been impressed by what was then a perfect game, called a hit from a ground ball at first base. The call was close, but not that close. The dispute was signaled by a loud roar from a large crowd. The umpire, Jim Joyce, was not then impressed. The pitcher, who covered first base, the catcher, the crowd and the video replay all indicated an out.

The next day, a tearful and saddened umpire graciously and publicly apologized to Galarraga, a feat not commonly observed in professional baseball. He, no doubt, was thinking of a similar miscall by umpire Gary Cedarstrom in 1994, when the victimized pitcher was Bobby Witt of the Oakland A’s. Yes, history repeats itself, but the graciousness of these two, the pitcher and the umpire, seems unparalleled in the history of professional baseball.

Requests to reverse this decision directed toward Baseball Commissioner Bud Selig fell on deaf ears. These were human errors, it was stated, and baseball being the all-American sport, must accept with it the errors of all humanity. That is the reason why, unlike the NFL, there is very limited use of instant replay in baseball.

A large percentage of the public and baseball writers agree with Commissioner Selig. They would apply the two doctrines of California appellate jurisprudence, to wit the rule of deference and the reluctance to reverse an exercise of discretion.

Nonsense.

1. The decision to reverse the umpire is more akin to a motion for a non-suit, directed verdict or summary judgment than a motion for a new trial. There are no triable issues. The facts are not just overwhelming, they are uncontradicted.

2. The reversal of this call would not involve a change in outcome or standing. There would be no financial changes or changed circumstances to baseball or the leagues.

3. A great injustice to a humble and totally innocent player could be avoided.

The office of baseball commissioner is somewhat similar to the office of Kaiser Wilhelm the II, or the Czar of Russia. The powers are absolute. No dissents are tolerated. This was caused, in part, because the Supreme Court ruled back as far as 1922 that baseball has almost complete immunity. In fact, Americans have adopted the designation of czar to a variety of powerful offices. Yet, we have rejected the reversal here on the basis that baseball is a typical human or American sport.

The basic purpose of our entire legal system, particularly torts and contracts, is compensation for wrongs committed. That purpose is ill served by Commissioner Selig’s inaction.