By: Brian Mangan
By now, most have probably heard the unfortunate news surrounding the Los Angeles Dodgers’ right handed starting pitcher Zack Greinke. Greinke was involved in an altercation in Thursday night’s Dodgers-Padres game in which he hit the Padres’ Carlos Quentin with a pitch, leading Quentin to charge the mound and incite a bench-clearing brawl. The fallout from that brawl has huge implications — Zack Greinke suffered a broken clavicle and will be lost to the Dodgers for a minimum of eight weeks.
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Major League Baseball has handed down its penalty to Quentin, in the form of an eight game suspension, but I cannot help but wonder if that is enough. Prior to the 2013 season, Zack Greinke signed a massive, $147 million contract with the Dodgers in the offseason as the free-spending Dodgers put together a high-priced team expected to contend for the World Series. Now, they are without Greinke and hopelessly adrift, having to replace him in their rotation with the likes of journeymen such as Chris Capuano.
Fighting in Baseball
Everyone knows that sports have their own codes of conduct, and that each sport’s code is different. In football and hockey, full contact sports where the players are trained and equipped for contact, it is completely within the rules for players to hit each other with full force, pummeling one another into the ground or into plexiglass boards. In other sports, such as basketball and soccer, in which contact is incidental and but common, some contact is to be expected but is carefully limited.
Baseball is, as usual, a unique case and has developed its own code of conduct, both through rules and through over a hundred years of play. In baseball, there are many unwritten rules: pitchers are permitted to pitch inside to hitters (so long as they don’t throw at the head); baserunners are permitted to do a “hard slide” into second base to attempt to break up a double play; and, in some cases, it is considered “permissible” for a batter to charge the mound in his own defense when he’s been hit by a pitcher. Charging the mound, make no mistake, is not allowed, and carries with it suspensions and fines — but within the code of the game, well, sometimes it just happens.
In this case, Quentin’s conduct in charging the mound on Greinke appears to me to be fundamentally different than other cases in which players do so. For instance, here, it is clear that Greinke did not hit Quentin on purpose (more on this below). Further, it appears relatively clear that Quentin premeditated his attack on Greinke, and intended to hurt him, rather than engage in the pushing and shoving that usually accompanies a charge of the mound.
In the law, there is a doctrine known as the “assumption of risk.” Although the official doctrine has been superseded over the years, but the underlying principle is still important in the law. In a landmark case known as Murphy v. Steeplechase Amusement Co., Inc, Justice Cardozo stated that “[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.” 250 N.Y. 479 (1929). This rule is both necessary and fair. Football players know that there is hitting. Batters in baseball know that a pitcher is “permitted” in an unwritten manner to throw at them and hit them in the body. If you choose to snowboard, or trampoline, or take part in any other activity in which the risks are apparent, you have generally consented to expose yourself to those risks and their outcomes. (For further reading, St. John’s Law Review)
However, that rule is not unlimited, as it applies to dangers that are obvious and necessary. In another landmark case, the Court of Appeals stated that “[the] rule is qualified to the extent that participants do not consent to acts which are reckless or intentional” and that one can only consent to the risks that are known, apparent, or reasonably foreseeable. Turcotte v. Fell, 68 N.Y.2d 432 (1986).
So the question appears to be this — was Quentin’s retaliation a danger which is obvious to the game of baseball? Was it a risk that Zack Greinke accepted by playing the game? Was Quentin’s conduct closer to an act that would take place in baseball, or to an assault?
Examples in Other Sports
As far as I can tell, there is no other incident quite like this in baseball, where a player ended up being injured as a result of an altercation that may very well have been intentional and extra-curricular to the exchanges inherent in the game. There are some high profile examples in other sports.
One of the most obvious examples was the horrible incident in hockey a few years back when Marty McSorley skated up behind Donald Brashear and gave him a two-handed slash across the head with his hockey stick. Brashear never saw it coming, hitting the ice, losing consciousness, and suffering a concussion. In that case, McSorley was not only punished by the league, but was convicted of assault in a Canadian criminal court. He avoided jail time, but the verdict that he had committed an intentional criminal act came even despite the fact that McSorley’s lawyer had argued that NHL players give “explicit consent” to the risk of on ice contact.
Whether you think the decision was good or not, the case appears to have turned on whether McSorley intended to commit an act not incidental to hockey. A similar question was posed two years ago on Thanksgiving when Ndamukong Suh stomped on a rival player’s arm after the play had ended. No injury resulted from the play, which was much less severe than the McSorley play, but the question again turned on whether Suh had acted intentionally in stomping his opponent’s bare arm with his cleats (he denied it). He was suspended but avoided further punishment.
This brings us back to Zack Greinke, Carlos Quentin, and the Dodgers.
The Greinke – Quentin Incident
Zack Greinke and Carlos Quentin have met before, in the American League, when Greinke was a Kansas City Royal and Carlos Quentin was a Chicago White Sox. Greinke has hit Quentin before as well, in fact, twice before Thursday night. Your interpretation of the facts will undoubtedly color your opinion as to whether you think this was simply baseball, or an incident like the McSorley incident.
Both he and Greinke made reference to their prior history in their comments after the game.
“I never hit him on purpose,” said Greinke, who still appeared shaken after the game. “I never thought about hitting him on purpose. He always seems to think that I’m hitting him on purpose, but that’s not the case. That’s all I can really say about it.”
Quentin said his history with Greinke has been “well-documented. That situation could have been avoided. You’d have to ask Zack about that.”
If anything, these quotes would lead one to believe that Quentin’s acts were not a heat-of-the-moment decision, precipitated by a baseball action, but rather, a premeditated act intended to injure Greinke. Furthermore, the game was a close game, and the pitch in question which hit Quentin was barely more than six inches inside, in an area where batters are unlikely to get hit. Quentin is notorious for being hit by pitch, and in fact, earlier in the series, had been hit by a pitch that he attempted to swing at.
With regard to Quentin’s punishment, Dodgers’ manager Don Mattingly went so far as to say that Quentin “shouldn’t play a game until Greinke can pitch.” Although this is impractical, the entire situation begs the question – what is the appropriate punishment for Quentin, if the attack on Greinke was intentional? And who possesses the standing to request that relief?
What Punishment, Whose Remedy?
As for the Dodgers and Greinke, no suspension will heal Greinke’s collarbone any faster, or repair the damage to the Dodgers’ playoff chances. Greinke, for his part, has a guaranteed contract, so he will be paid regardless. But what about the Dodgers, who were paying Zack Greinke over a half million dollars per start to pitch this year? What of their approximately $7 million dollar investment that they will not be able to recoup? Are civil remedies the answer?
In another hockey case, they might be. In 2004, Todd Bertuzzi sucker-punched Steve Moore, fracturing his vertebrae and ending his career. It was a truly terrible incident, as described by ESPN: “The consequences have been enormous. Moore’s NHL career was over at age 25. The Harvard graduate, now 33, still suffers daily difficulties from brain damage — a tear in the frontal lobe of the brain was confirmed in MRIs, according to court documents.”
Moore sued Bertuzzi in a civil case which is currently pending, again, in Canada. Bertuzzi, like McSorley, faced criminal charges for his act, except that Bertuzzi ultimately plead guilty. As for the civil case, it remains pending, mired in increasingly acrimonious litigation. Again, analysis of the case has turned on whether it was conduct acceptable within the sport. Lester Munson, a legal analyst at ESPN, compared the Bertuzzi attack to the bounties placed on NFL players: “Even Warner and Favre, known targets of bounty hits, have acknowledged that they are part of the NFL culture. Bertuzzi’s attack on Moore, however, is one of a kind. It may be the most vicious attack in the history of team sports.”
Even though the injury here was not as severe as in Moore’s case, I believe that it’s a question of intent and propriety within the sport. In this case, Quentin’s actions have cost the Dodgers and Greinke dearly.
I believe that Quentin intended to attack Greinke the next time Greinke hit him, and it didn’t matter where, or when, or whether it could be perceived that Greinke did it on purpose or not. I also believe that, if true, that set of circumstances makes this less like a baseball incident and more like an actual attack.
What if this incident had taken place off the field? Or if Quentin had used a bat? What if Quentin had charged Greinke from first base, when Greinke had his back to him? What if Greinke is never the same after this injury? Obviously, the same questions could be asked in support of the other position, for example, what if Greinke had not been injured as a result of this?
But ultimately, all punishment in our society is based on a combination of deterrence and retribution – for instance we punish murderers more than attempted murderers, and hold people accountable for unforeseeable consequences of their bad acts. It is enormously unlikely that we will see a civil suit again Quentin, but I cannot say that I think a suit against him would have no merit. Quentin should be held accountable for his acts, and an eight-game suspension is sorely inadequate.
Leave your comments below. What do you think an appropriate suspension would be? Should the Dodgers or Greinke be able to recover against Quentin for his assault?
Brian Mangan is an attorney living in New York City, and isn’t quite sure what the right answer to this is.
Although Quentin claims that he has never reacted poorly to a hit by pitch before, even cursory inspection of the facts proves that wrong. During a 2009 White Sox-Royals game, Quentin had to be stopped from charging the mound after one of those HBPs.
For fun, the greatest pitcher reaction to being charged on the mound, ever. https://www.youtube.com/watch?v=9mt0_0k40t4