By Timothy Liam Epstein, Esq.
SmithAmundsen, LLC
Financing, logistics and convincing the International Olympic Committee that Chicago is the best choice for the 2016 Summer Games, is not the only athletic issue facing Chicago these days. At lower levels of competition a debate is being waged over the type of bat used during baseball games. While seemingly limited in impact to Illinois, the larger sports law community would do well to pay attention to the sports law developments (like the Illinois Supreme Court’s decision in the Karas case) in Chicago and Illinois as a whole for potential impact on amateur events like World Sport Events, NCAA championships, conference championships, and, of course, the 2016 Summer Games.
Last month a Joint City Council committee held a hearing on the issue of whether to ban the use of metal bats by Chicago baseball players between the ages of 8 and 18. At the Hearing, Chicago Public Schools, Little League Baseball and bat manufacturers stood up in opposition to the ban. Ald. Frank Olivo (13th), whose son is currently recovering from a fractured skull after being hit by a baseball off a wooden bat, along with Ald. Anthony Beale (9th) oppose the ban. The aldermen argue the ban will disadvantage city players because metal bats are less expensive and last longer than wooden bats. Ald. Robert Fioretti (2nd) is pushing to ban metal bats in order to save lives. If Chicago were to pass the ordinance it would join New York City and North Dakota, which previously banned metal bats.
In September of 2007, backed by Councilman James Oddo, the original sponsor of the bill, New York City banned metal bats in high school baseball games. While U.S. District Court Judge John G. Koeltl said there is no clear evidence that metal bats cause more serious injuries than wooden bats, he added, “[t]he protection of the health and safety of high school-age students is entitled to great weight.” Judge Koeltl further stated, “[w]hile the record does not include clear empirical evidence showing that more serious injuries would occur without the ordinance, it is the City’s legislative assessment that the risk is too great.” Moreover, former New York Mets pitcher John Franco agreed that the ban is a good idea arguing that the baseball shoots back at the pitcher as soon at it leaves the pitchers hand, “I don’t even see it coming at me. It’s dangerous. It’s very, very dangerous…I’m speaking from someone standing on the mound for 22 years, and I can see the difference.”
In addition, in 2007, North Dakota changed from metal to wooden bats in high school baseball. Coaches and players alike support the change as it brings back “real baseball” while promoting safety. The North Dakota High School Activities Association Board of Directors voted for the switch as a result of a frequency of injuries caused by line drives off metal bats that allow little reaction time for fielders. Opponents of the ban argued that the cost of replacing wooden bats is much higher and the fewer hits or home runs produced by wooden bats negatively impact players’ recruitment by college and professional teams. While early returns show lower offensive statistics associated with wooden bats, proponents argue that wooden bats reveal the players’ true power. Furthermore, proponents of the metal bat ban argue that safety is of paramount importance and coaches have noticed a difference in line drives hit at their players. Sherm Sylling, Executive Director of the North Dakota High School Activities Association, says that all in all the change has been smooth.
Since the introduction of metal bats in the 1970s, metal bats have come to dominate youth and amateur baseball, as well as softball markets. Metal bats were originally introduced as a cost-saving alternative to wooden bats, which were prone to breaking. While a coach may need six wooden bats per year at a cost of fifty dollars each, a basic metal bat could sell for thirty dollars. Moreover, players and coaches agree that metal bats outperform wooden bats with statistical support.
Scientific research performed in 2002 by a group of bioengineers at Brown University found that, on average, baseballs hit off a metal bat traveled fastest at 93.3 mph, while, on average, baseballs hit off a wooden bat clocked in at a slower speed of 86.1 mph. These researchers concluded that the difference in speed between the bats was due to the barrel of an aluminum bat being hollow, allowing for a distribution of mass along the length of a metal bat, which is a considerably more generous distribution of mass than that of a solid wooden bat. Interestingly, the research indicated that the “sweet spot” did not seem to vary between wooden and metal bats.
In the late 1980s, the National College Athletic Association (“NCAA”) implemented guidelines for the weight and length of metal bats, as well as certain safety tests that the bats had to pass. Then, in 2008, the NCAA and Little League Baseball announced more stringent tests aimed at making metal bats perform more like wooden bats by 2011. The groups also called for adjustments to bats already in play. Critics of metal bats point to a growing body of evidence showing that metal bats are unsafe for pitchers because pitchers have less than half a second to react to line drives. The most common fear articulated by metal bat critics is a situation involving a small twelve year old pitcher on the mound facing a large twelve year old batter at the plate.
Local critics of metal bats also point to a study conducted by the Illinois High School Association (“IHSA”), which tracked thirty-two high school teams in more than four hundred games and nine thousand at bats. The study recorded five injuries from metal bats, but only one injury from a wooden bat. Critics point to the specific danger in the faster speed of baseballs hit off metal bats to younger players who have more trouble controlling baseballs than older players. In addition, critics of metal bats point to a study from the National Center for Catastrophic Sports Injury Research that indicates that there have been fifteen catastrophic injuries to high school and collegiate pitchers since 1982, with three players having died in the past decade from batted baseballs. Only two of those deaths involved wooden bats, while the others involved metal bats. Of note, Little League Baseball maintains its opposition to banning all non-wood bats, and counters that the reported injuries to pitchers should be tempered by the fact that there have been 9,500,000 high school and collegiate baseball participants since 1982.
While there have been numerous lawsuits filed by amateur baseball players against baseball bat manufacturers, most of these cases have settled. The “premier plaintiff’s case” in this area occurred in 2002, in Brett v. Hillerich & Bradsby Co., a case filed in the Western District of Oklahoma. In Brett, a teenage pitcher was struck in the head with a baseball hit off an aluminum bat made by Hillerich & Bradsby Co., the manufacturer of Louisville Slugger. The impact crushed the pitcher’s skull resulting in a massive blood clot, which doctors performed emergency surgery on to remove the clot and repair the skull fracture.
Brett then sued Louisville Slugger alleging that the subject aluminum bat was defective because it made hit baseballs achieve dangerous speeds. The lawsuit also claimed that baseballs hit with this aluminum bat were hit with such force that pitchers do not have sufficient reaction time to protect themselves. Discovery in this litigation revealed internal documents claiming Louisville Slugger knew or should have known that the aluminum bat’s capability put pitchers in danger, but they chose to ignore the warnings. At verdict, the jury awarded the Plaintiff $150,000, which Louisville Slugger did not appeal.
Hannant v. Hillerich & Bradsby, followed an incident in April 2002, where Daniel Hannant was struck in the head with a baseball hit off a metal bat while pitching in a high school game near Chicago. Hannant suffered severe head injuries and the case settled. In Sanchez v. Hillerich & Bradsby, 104 Cal. App. 4th 703 (Cal. Ct. App. 2002), Andrew Sanchez was pitching for California State University-Northridge (“Cal State-Northridge”) when he was seriously injured when struck in the head by a line drive hit off the metal bat of a University of Southern California (“USC”) player. Sanchez filed suit against USC, the NCAA, the Pacific 10 Conference (“Pac-10”), and Hillerich & Bradsby. The appellate court found in favor of Sanchez, with no admission of liability and an unspecified amount of damages.
Currently, in the case of Domalewski v. Hillerich & Bradsby, The Sports Authority and Little League Baseball, a 12-year-old was pitching in Wayne, New Jersey when he was hit in the chest by a baseball off a metal bat in June 2006. The Plaintiff’s heart stopped for fifteen minutes resulting in commotion cordis condition, causing brain damage. The Plaintiff is now allegedly confined to a wheelchair, cannot speak clearly, and needs constant care and supervision. The lawsuit alleges that the three defendants were aware of the danger of metal bats, put speed ahead of safety, and negligently deviated from acceptable practices in the design and manufacture of the bats. One advertisement claimed the bat was so powerful that it was capable of “beaming the third basemen” with a line drive.
The Domalewski suit contends that in 2002, the U.S Consumer Safety Product Commission found that there were seventeen deaths nationwide due to batted baseballs, with eight from metal bats, two from wooden bats and seven from an unknown origin. While the lawsuit has yet to be decided, its effect on youth baseball thus far has been that many youth participants are wearing protective gear with at least one youth league making it mandatory for all pitchers to wear a protective heart guard.
With proponents of the metal bat ban claiming athlete safety as paramount to any cost or statistical advantage that metal bats may hold, opponents have a tough legal battle if the debate ever found its way into court, but the repercussions of such a ban may have additional consequences. While baseball is not going to be played at the 2012 Summer Games in London, and Olympic baseball rules (as of the 2008 Summer Games in Beijing) call for the exclusive use of wooden bats, baseball competition during the 2016 Games has not been determined. Further, if Chicago succeeds in securing the bid for the 2016 Summer Games, the number and scope of amateur sporting events taking place in Chicago (with efforts made by World Sport Chicago) will significantly increase, which could include baseball (i.e. Chicago’s hosting of the 2007 World Boxing Championships). As such, the outcome of the City Council’s debate on the use of metal bats may have an impact beyond Chicago’s youth baseball diamonds if the scope of the ban is expanded, and the precedent set is used to examine the equipment utilized in other sports.
Timothy Liam Epstein (Chicago, IL) is Chair of the Sports Law Practice Group at SmithAmundsen LLC, focusing on the litigation needs of players, coaches, teams, and schools. Tim is also the Vice-Chair of DRI’s Sports Law Special Litigation Group. Tim thanks his law clerks, Justin Kaplan and Megan Ferkel, for their contributions to this piece.
