What Is a Sport? (Part One)

No better question could start a sports law blog. Football is a sport; so's the discus. Is golf? Darts? Horse racing? (For the jockeys too?)

Surprisingly, sometimes seemingly academic issues need to be resolved by a court of law. The issue came up last spring when a baseball pitcher for a California junior-college team hit an opposing batter on the head, splitting his helmet and causing injury. Because the pitcher's teammate had been hit the previous inning, the purpose of the pitch was seemingly retaliatory. (Curiously, the appellate decision doesn't mention whether or not the pitcher, on cross-examination, admitted to throwing at the batter intentionally. I would think the plaintiff's lawyer would have spent some time on this issue and would not have had too much trouble in eliciting this confession. If so, I wonder why the California Supreme Court chose to treat the issue of "intentional hitting of the batter" as a hypothetical.) One defense offered by the County, which operated the college and hosted the game, was that the batter, by choosing to play in a baseball game, "assumed the risk" of being thrown at by an opposing pitcher, even (hypothetically) if the pitch was aimed at his head in anger and intentionally.

California divides the doctrine of assumption of risk into two: primary and secondary. Under the latter, the pitcher in this case would owe the batter a duty of care (here a duty not to negligently or intentionally injure the batter) and the question would be whether or not the batter knowingly exposed himself to the risk of the pitcher's failure to meet that duty. But the under the former, "primary" assumption of risk doctrine, the pitcher owes the batter no duty of care at all. Being thrown at is just part of the game, and no matter what the pitcher intended or of what the batter had knowledge, no liability attaches.

The California Supreme Court played hard ball, applying the doctrine of primary assumption of risk to hold that, as a matter of law, a pitcher intentionally throwing at a batter is part of the game, and thus one of the risks the batter assumes when he steps into the box.