When the Philadelphia 76ers unveiled their new monster of a t-shirt cannon, our law-school-infiltrated brains immediately thought of potential lawsuits. What happens if a fan gets hurt? Who can they sue and on what grounds? More importantly, what goes into making the decision to build such a t-shirt launching device from a management perspective? And who is in charge of making sure the Phillie Phanatic never gets his hands on it?
To answer these questions we turned to sports management legend, Prof. Jordan Kobritz. Kobritz is not only a JD and a CPA, but he is Chair of the Sports Management Department at SUNY Cortland. Prior to taking the reigns at Cortland, however, Kobritz lead quite an odyssey from being a lawyer to owning a minor league baseball team, the AAA Maine Guides. Sports Illustrated even did a profile on him and the team.
In short, there is perhaps nobody better qualified to give the inside scoop on building a career in sports and the Xs and Os of stadium liability than Prof. Kobritz.
First, you have quite an interesting background…attorney, CPA and former minor league baseball team owner. Tell us a bit about your background and journey to your current position?
I guess the word “journey” is appropriate! I was born and raised in Bangor, Maine, not exactly a hotbed of sports, although Red Sox fan Stephen King and former Major Leaguer Matt Stairs currently live there. I got my undergraduate degree in accounting from Georgetown University and a law degree from Cornell. I went back to Bangor and practiced law and some accounting for ten years, including two years as an assistant district attorney. I decided that I didn’t want to spend the rest of my life doing that, so, I handed the keys to my law practice to my partner and headed out on what I refer to as my Baseball 101 course. That was in 1980, pre-internet and pre the Sport Management craze, so there was very little information publicly available on the business of sports. I moved to Winter Haven, Florida, former spring training home of the Red Sox, for a year and set up shop. From there I traveled around the country and visited ballparks, college programs and Minor League teams trying to learn as much as I could about the sport off the field. I talked – and mostly listened – to anyone who would spend time with me – primarily college coaches and administrators, media people, management personnel and scouts. When I returned to Bangor, I sat down and sifted through what I had learned and decided I wanted to own a Minor League team.
During my travels I had heard that the Charleston Charlies, a Triple-A team in the International League, were for sale so I called the owner. Long story short, I worked out a deal with him and at the 1982 Baseball Winter Meetings in Honolulu, received league approval to move the team to Maine for the 1984 season. There was no professional caliber ballpark in the state at the time so we built a ballpark in Old Orchard Beach. The team played there for five seasons. After selling the team, I moved to Florida to start a Minor Hockey League, which for logistical reasons never got off the ground. Rather than return to Maine, I purchased the Baseball City team in the Class A Florida State League from Anheuser Busch in 1993 and moved it to Daytona Beach. I sold that team in 2000 and moved to Arizona.
After 12 years in Arizona, teaching mostly online, I accepted the position as Professor and Chair at SUNY Cortland. I should point out that regardless of where I lived after law school, I taught law and Sport Management at the college level, beginning with Husson University and the University of Maine while I was practicing law in Bangor.
What is your role at Cortland and what does a sports management degree provide?
In my current role I wear a number of hats. I manage the faculty, which consists of nine full-time professors and six adjuncts. I lead the Department in curriculum development which includes new courses and concentrations, and I act as a go-between between students and faculty and faculty and administration. A Sport Management degree should prepare you for a variety of careers in the sports field, including marketing, public relations, sales, facility operations, management, etc. We have an extensive internship program where students spend up to a semester in the field involved in hands-on activities in a sports setting, from collegiate athletic departments to professional sports at both the major and minor league level. That experience prepares students to pursue a career of their choice.
Most sports fans have probably seen (either in person or in the news) somebody get hit accidentally by a ball, player, or piece of equipment that accidentally leaves the playing field; do those injured spectators have any potential claims against the team or have they accepted the risk by going to the game?
Interesting question! The answer is, it depends on where you live and who you listen to! I’ll start by saying that we’re talking about an area of the law that is referred to as Torts, which is defined as private wrongs between individuals (civil law as opposed to criminal law where the state brings an action against a citizen). Torts are a part of the law that is called negligence. There are four elements to negligence: (1) One party owes a duty to another, (2) breaches that duty, (3) causing damage, injury or loss to another, which is (4) the proximate cause of the breach of duty. In civil law, citizens are allowed to regulate their own relationship, so in this case, teams and/or sports facilities will attempt to pass the risk of loss or injury from batted balls or bats flying into the stands to their fans. If you’ve ever read the back of a ticket stub it basically warns you of the risk of injury and says it’s your (the fans’) responsibility.
In addition, prior to most games, the PA announcer warns fans to pay attention and to be aware of objects flying into the stands. Sometimes you’ll also see signs posted around a stadium that also warn fans of the dangers of attending a game. These are all attempts to transfer liability for injuries from the team and/or facility to the fans. In most states, the courts support this attempt to pass on liability to the fans by saying fans “assume the risk,” a legal phrase that basically requires two things: that fans understand the risk inherent in the activity (attending a game) and voluntarily assume that risk. There are exceptions where the fans may win a lawsuit, but for the most part, fans assume the “normal” risks of attending a game. However, players going into the stands would not be considered one of the risks inherent in attending a game and wouldn’t be a risk that fans assume.
When a lawsuit is filed, who are the likely defendants?
When you bring a lawsuit, the general rule is, sue anyone and everyone who might be liable! There’s also a concept in the law that is referred to as the “deep pocket theory,” which generally means sue the person/company with the most money. So, a plaintiff in a lawsuit will sue the individual responsible for the action (player), the team, the facility owner (if different from the team), the equipment manufacturer and perhaps the league. Of course, in today’s environment virtually everyone has insurance so it’s the insurance companies that hire and pay the attorneys and also pay any judgment that results from the litigation or settlement.
I often notice some fine print on the back of my tickets alerting me about the potential dangers of being a spectator. Do those waive a team’s liability or are these attempts at waiving liability more like adhesion contracts that would not hold up in court?
As mentioned above, the ticket back language is referred to as “exculpatory” language, where one party tries to transfer liability to another. Sometimes it works, sometimes not. Contracts of adhesion are when one party dictates the terms of a contract to another who must accept or reject the terms offered without being able to negotiate. Although that is in fact the case with the purchase of a ticket, most courts rely on negligence rather than contract law to resolve these issues.
What about non-game related injuries from t-shirt or hot dog guns? Does an injured fan from one of those promotions have a case?
The short answer is yes…and no! As we know, anyone can sue anyone for anything. Courts will examine situations such as this using the negligence theory. Once a plaintiff proves the elements of negligence are present, the defendant (usually the team or stadium) is allowed to raise the defense of assumption of the risk. Is it reasonable to assume that if you attend a sporting event you might be hit by a projectile expelled from a “gun?” Today, the answer is probably yes. However, there exists an understanding that the risk is reasonably related to the activity.
The Philadelphia 76ers unveiled a new t-shirt cannon that is a beast. Do you think it is a good idea? Do you think they probably have insurance for it?
The cannon in the photo looks like an artillery gun! I don’t know how much firepower the gun generates or if a t-shirt shot from this gun has the potential to hurt a fan any more than a t-shirt shot from less powerful guns. A photo of this weapon, introduced into evidence, is likely to influence a jury! No, I do not think it’s a good idea to incorporate a gun like this into your game promotions. But there are people (fans) who love the excitement – and potential danger – inherent in a promotion like this. I’m sure the 76ers have insurance to cover fan injuries, among other risks. Whether their premiums will go up after introducing this gun will depend on the insurance company’s evaluation and/or future claims history.
Based on your experience in sports, how much did potential civil liability factor into decisions you made about in-game promotions, mascot behavior, etc?
It wasn’t so much the specter of potential liability as much as it was the safety of my fans and common sense that guided my decision making process. For example, I never allowed fans onto the field while the game was underway or the players were warming up (e.g., taking infield practice). I remember one of the first Minor League games I ever attended I saw the dizzy bat race performed. It’s a staple at many ballparks. Fans go out onto the field, line up along the first base line, put their chin on the knob of a bat perpendicular to the ground, spin around the bat several times, and then race each other to first base. This is done between innings while the team on the field is taking infield. Anyone who has ever tried this feat knows the promotion is apply named: you get dizzy very quickly making it difficult to run very fast or very straight to the bag. I saw a fan run out into the infield and almost get hit by a thrown ball. I decided then and there that we would never perform that promotion at any ballpark I managed! We did allow the mascot on the field between innings, but he was a club employee who was trained in safety. That’s not the case with fans that want to get noticed and may not be aware of the potential dangers.