Angel Hernandez and How Lawsuits Impact Baseball by Sheryl Ring August 8, 2018 Angel Hernandez is not considered a particularly good umpire. He’s been called, unironically, the worst umpire in Major League Baseball. Ian Kinsler said last year that Hernandez “needs to find another job, he really does.” And Kinsler’s not alone. I will not watch a game, any game, officiated by Angel Hernandez! His incompetence amazes me and I'm tired of MLB doing squat about it! Nite — Chipper Jones (@RealCJ10) July 5, 2013 Players in both the American and National League voted Hernandez one of the game’s three worst umpires. (In case you’re wondering, Joe West was worse in both leagues.) So why is Hernandez considered so bad at his job? He’s probably most famous for incorrectly calling this a double instead of a home run back in 2013. But there’s more to Angel Hernandez than blowing home-run calls. His calls at the plate aren’t great either. And his strike zone tends to be, shall we say, creative. Like in this instance: Angel Hernandez….not good. pic.twitter.com/BFgM9plRMt — Justus Cleveland (@JustusCleveland) May 23, 2018 And this one: Angel Hernandez was ready to go home pic.twitter.com/pUmINdnhNS — Robert O'Neill (@RobertONeill31) August 5, 2018 And this one, from the World Baseball Classic: So it’s not surprising that Hernandez has made an appearance or two in Jeff Sullivan’s “worst calls” series. Per the rulebook, of course a strike is a strike because the umpire says it is. This is the Marbury v. Madison of baseball. But the rulebook also says a pitch is a strike based on the umpire’s discretion within certain guidelines; it doesn’t say that a pitch is a strike because the umpire feels like it. It seems like calling these pitches strikes would be an abuse of discretion; that is, not reasonable. And yet Hernandez, to the bewilderment of some, still has his job. To his credit, Hernandez seems like a professional, and a nice guy at that. And he will, on occasion, admit when he’s wrong. Just spoke with umpire Angel Hernandez at Sox Park. Angel said he looked at video of last pitch to Rizzo and that it was off plate by three inches, should've been ball four. "Rizzo was right… I'm not perfect." — Paul Sullivan (@PWSullivan) August 6, 2018 But that’s not, in all likelihood, why Hernandez still has his job. This is. Last year, in the most important lawsuit in sports that nobody’s been paying any attention to, Hernandez sued Major League Baseball. Much of his complaint is dedicated to arguing that his treatment from the league changed after Joe Torre joined the Commissioner’s office. Here’s a summary of that point from the aforementioned complaint: Torre, claims Hernandez, has essentially held a grudge against the umpire ever since the former served as manager of the dynasty-era Yankees. The quote cited at the end of this above passage actually appears in full in a 17-year-old New York Times story.: Given Hernandez’s history, it’d be easy enough to side with Torre here — and, to be fair, Hernandez’s complaint makes it sound as though Torre were working for baseball at the time of his remarks, not as a manager of a team (which would necessarily make him biased). Still, it seems reasonable to extract from his language that Torre wasn’t just critiquing Hernandez’s job performance in the relevant text, but rather — with his comments about – not checking video and looking like a fool — engaging in something more akin to public humiliation. Reading farther into Hernandez’s complaint, we learn that, after Torre took over in baseball’s front office, things changed: By itself, this is maybe nothing more than a personality conflict. Hernandez had a rough relationship with his new boss, perhaps owing to some old baggage. Hernandez’s team suggests it’s something more than that, though: Hernandez cites a “more troubling trend” — and it extends beyond just the way in which Hernandez himself has been treated. Race, Hernandez claims, is relevant here. Both in how umpires have been selected to work the World Series: And in a number of other contexts: Finally, here’s the most important line in the Complaint: According to Hernandez, the league’s method for selecting umpires has been suspect. That’s important because, if true — and, when evaluating a complaint, a judge is required to assume that it is — it means that MLB is promoting white non-applicants over applicants of color, which would be pretty clearly illegal as a business practice. Hernandez did also get a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) prior to filing suit. The EEOC requires that it investigate certain types of employment discrimination claims before one files a lawsuit — with a view both to screening out frivolous ones and also to resolving easy ones (among other reasons). That doesn’t mean Hernandez is going to win or that his case has merit. It just means at least one body looked at it, said “seems plausible,” and sent him on his way to court. MLB responded by moving to dismiss on the grounds of something called personal jurisdiction. I am not going to bore you with personal jurisdiction, because you don’t have to hear about minimum contacts or long-arm statutes. For the moment, however, it’s enough to know that MLB is saying that the court in which Hernandez filed doesn’t have authority to force MLB to defend the case in that court. The reason this doesn’t matter is that, even if MLB wins, Hernandez can just turn around and sue in a different court, so MLB is going to have to reckon with this eventually. That’s because dismissals for lack of personal jurisdiction are almost always without prejudice, because the court can’t issue a final order if it doesn’t have authority to issue an order on the merits in the first place. (For those of you who plan to take the bar exam or are in law school, read the oral argument on MLB’s Motion. It’s a great refresher. For the rest of you, I recommend it as bedtime reading with mint tea.) MLB’s move was clever, though, at least from a PR perspective: by moving to dismiss on jurisdictional grounds, MLB has avoided discovery or hearings on the discrimination alleged in the complaint. In other words, it effectively hit the pause button on Hernandez’s case, and it’s been essentially forgotten as the 2018 season unfolded. As a result, media coverage of the lawsuit has effectively stopped. MLB named Hernandez to umpire the All-Star Game shortly after his suit was filed, though it seemed that stemmed more from MLB getting lucky than from anything else. One notable event did occur, though, after Hernandez’s suit: a non-white umpire was assigned to the 2017 World Series. As for Hernandez, firing an employee for suing you is generally a bad idea, and is also illegal, and looks really, really bad to a judge. (I once worked on a case where the judge held an employer in contempt for firing an employee who sued them.) So MLB will likely let Hernandez continue to make bad calls. And maybe that’s okay. If Hernandez’s complaint is true — and, at this point, we have no evidence to the contrary — there’s a significant problem in MLB’s umpiring ranks. It’s also possible, of course, that there is no actual discrimination; we don’t know what discovery will show, and Hernandez isn’t exactly a model umpire. But given the problem Hernandez is alleging, it’s probably worth waiting to see what discovery reveals before deciding one way or another. If Hernandez is right about intentional discrimination, that’s a problem which should of course immediately be remedied. If he’s wrong, even the statistics he cited are evidence of at least an unintentional problem that would benefit from investigation. But either way, we can all stomach a few bad strike calls — and maybe even a blown home-run call or two — while we wait to find out.