There’s a saying in my profession that “the law is what the court says it is.” That’s a paraphrase of a famous line from Justice John Marshall in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The point is that the law is open to interpretation, even if the words on the page are unchanging. Your interpretation, my interpretation, even Meg Rowley’s interpretation – none of that matters. The only interpretation that matters at the end of the day is that of the person wearing the robe.
When it comes to baseball, the judges are the umpires – as the recent Rangers-Astros series shows. Our saga begins in a rather ordinary fashion – with a questionable strike call. Per Chandler Rome at the Houston Chronicle:
In the next half-inning, [umpire Ron] Kulpa called a borderline first pitch strike against Tyler White. The entire Astros dugout charged toward the railing and erupted with vitriol toward Kulpa. Kulpa removed his mask and yelled back. [Astros Manager A.J.] Hinch came out to diffuse the situation and, at that point, no one was ejected.
[Houston coach Alex] Cintron did not cease his criticism. Kulpa tossed him as Hinch returned to the dugout. A pitch later, while Kulpa still stared into the Astros’ dugout, Hinch began to bark back. Kulpa ejected him.
Here’s video if you’d rather see for yourself:
It's a little chilly out, but things are running hot on the field.
— FOX Sports Southwest (@FOXSportsSW) April 4, 2019
But there’s more to this story. Evidently, Kulpa subscribes to the Marbury v. Madison school of umpiring power.
What happens when an umpire has a full blown meltdown? Just watch Kulpa. After Hinch returned to the dugout the second time, Kulpa kept looking over there, most likely waiting for a player or coach to make another comment. Hinch gave him what he wanted. He yelled “You can’t keep doing this!” at Kulpa, who immediately ejected Hinch, leading to an on-field screaming match and Kulpa shouting in Hinch’s face “I can do anything I want!”
Notably, Hinch wasn’t arguing balls and strikes when Kulpa ejected him.
Before even one more pitch was thrown, the umpire leered into the Houston dugout, essentially daring the players to say something. Hinch had to once again take the field to kindly ask the neutral game official to stop staring down his players. The mics picked up Hinch’s words to Kulpa: “There’s nothing to see. There’s nothing for you to see. Look out there. Look right there.”
And just to prove the point that he really, truly, could do anything he wanted, Kulpa proceeded to make himself the center of the spectacle, including initiating physical contact with catcher Max Stassi.
— Tyler Applegate (@t_applegate) April 4, 2019
There’s a lot to unpack here, most notably, Kulpa’s assertion that, as an umpire, he can do anything he wants. But before we get there, we have to explain something.
By far the most common question I get from clients in my day job is “can s/he do that?” And my answer is always the same. The law isn’t a magic force that uses midichlorians to prevent a person from killing or stealing. A person can – in the sense of physical capability – do whatever they want. The only laws that can stop them are the laws of biology and physics.
What the law can do is punish people for doing those things. In essence, the law is a gigantic set of incentives and disincentives. The same applies to the rules of baseball and Ron Kulpa. Gandalf won’t appear to stop Kulpa from transgressing some rule on umpire conduct. So what we’re looking at here is not whether Kulpa is right in the literal sense, but rather whether there are limits in place that, were Kulpa to transgress them, provide for some kind of consequence.
The kind of power Kulpa is claiming is called plenary power, and we discussed it earlier this year in the context of commissioner Rob Manfred. Plenary power is “[p]ower that is wide-ranging, broadly construed, and often limitless for all practical purposes.”
But while the terms of the Major League Constitution grant the commissioner that kind of unlimited authority, there’s no such similar grant for umpires. Umpire duties are covered by Rule 4.01 of the Official Major League Rules, which includes things like ensuring alternate regulation baseballs are available, inspecting baseballs, and ensuring compliance with equipment specifications. In fact, to the extent the umpire’s power is delineated by a list of duties, essentially the entire baseball rulebook is a list of what the umpire can and should do. Nearly every rule tells the umpire what to do, because it’s the umpires who enforce the rules. If case law and statutes are an instruction manual for judges, then the Major League Baseball rulebook is an instruction manual for umpires.
But this is a non-exhaustive list, and it doesn’t say what an umpire can’t do. For that, we need Article 8.00, conveniently entitled “The Umpire.” In Rule 8.01, we learn what the umpire’s authority is.
8.01 Umpire Qualifications and Authority (a) The League President shall appoint one or more umpires to officiate at each league championship game. The umpires shall be responsible for the conduct of the game in accordance with these official rules and for maintaining discipline and order on the playing field during the game.
(b) Each umpire is the representative of the league and of professional baseball, and is authorized and required to enforce all of these rules. Each umpire has authority to order a player, coach, manager or club officer or employee to do or refrain from doing anything which affects the administering of these rules, and to enforce the prescribed penalties.
(c) Each umpire has authority to rule on any point not specifically covered in these rules.
(d) Each umpire has authority to disqualify any player, coach, manager or substitute for objecting to decisions or for unsportsmanlike conduct or language, and to eject such disqualified person from the playing field. If an umpire disqualifies a player while a play is in progress, the disqualification shall not take effect until no further action is possible in that play.
(e) Each umpire has authority at his discretion to eject from the playing field (1) any person whose duties permit his presence on the field, such as ground crew members, ushers, photographers, newsmen, broadcasting crew members, etc., and (2) any spectator or other person not authorized to be on the playing field.
Based on this, Ron Kulpa is partly right. As the personification of Major League Baseball on the field, the umpire does indeed have vast authority for “maintaining discipline and order.” And note that the umpire has authority to eject a person merely for objecting to a decision, and not only for unsportsmanlike conduct. The umpire can even eject a player in the middle of a play! This is, frankly, a poorly written rule; as written, the umpire can theoretically eject a manager who asks for a replay review; by asking for that review, the manager is, by definition, objecting to a ruling. And, most notably, Rule 8.01(c) basically says that where the Rules don’t cover something, the umpire has discretion to make up a rule.
This is obviously really broad authority, and, for the most part, the rest of Article 8.00 doesn’t get any less so. Rule 8.02, which governs appeals of umpire decisions, allows those appeals only to the umpire who made the decision in the first place. Under Rule 8.03, the umpire-in-chief (as in, the home plate umpire; this is not the same as the crew chief) has even more authority; he can “[a]nnounce any special ground rules, at his discretion.” (In this context, a “ground rule” is one that the umpire “thinks are made necessary by ground conditions, which shall not conflict with the official playing rules.”) In other words, if Ron Kulpa wanted to announce a Rule that any ball that hit the roof of Tropicana Field was a home run, he could do that. The umpires do have a lot of power.
If this were all there was in Article 8.00, Kulpa would probably be right. But there’s one more part of Article 8.00, entitled “General Instructions to Umpires.” They are, essentially, the rules that umpires are supposed to follow. Here are some excerpts.
- Be courteous, always, to club officials; avoid visiting in club offices and thoughtless familiarity with officers or employees of contesting clubs.
- When you enter a ball park your sole duty is to umpire a ball game as the representative of baseball. Do not allow criticism to keep you from studying out bad situations that may lead to protested games. Carry your rule book. It is better to consult the rules and hold up the game ten minutes to decide a knotty problem than to have a game thrown out on protest and replayed.
- Keep the game moving. A ball game is often helped by energetic and earnest work of the umpires.
- You are the only official representative of baseball on the ball field. It is often a trying position which requires the exercise of much patience and good judgment, but do not forget that the first essential in working out of a bad situation is to keep your own temper and self-control.
- Each umpire team should work out a simple set of signals, so the proper umpire can always right a manifestly wrong decision when convinced he has made an error. If sure you got the play correctly, do not be stampeded by players’ appeals to “ask the other man.” If not sure, ask one of your associates. Do not carry this to extremes, be alert and get your own plays. But remember! The first requisite is to get decisions correctly. If in doubt don’t hesitate to consult your associate. Umpire dignity is important but never as important as “being right.”
- Most important rule for umpires is always “BE IN POSITION TO SEE EVERY PLAY.” Even though your decision may be 100% right, players still question it if they feel you were not in a spot to see the play clearly and definitely.
- Finally, be courteous, impartial and firm, and so compel respect from all.
Based on these instructions, there are things that Ron Kulpa can’t do. For one thing, he can’t be discourteous; he must be courteous “always.” He is supposed to keep a game moving. He is supposed to maintain his temper and self-control. And he is supposed to elevate being right above his own dignity.
And believe it or not, Major League Baseball really does enforce these rules. That is, the commissioner – who, remember, really does have plenary power – enforces these rules. Some umpires have been suspended or fined for misapplying rules or allowing teams to engage in rule violations. In fact, umpires get disciplined all the time.
Now, it’s true that the commissioner’s office has considerable latitude when it comes to disciplining umpires. In fact, the men with the chest protectors are chastened “frequently,” according to one source.
Some umpires are forced to sit because of poor performance. Just like a slumping slugger.
The difference is that, under the collective bargaining agreement between the umpires’ union and Major League Baseball, and unlike the players’ CBA, most discipline and disputes between the league and union are confidential. That’s why it was a big ruckus when umpires staged a brief protest, wearing white armbands to signify opposition to comments made by Ian Kinsler regarding Angel Hernandez. MLB immediately stated that the protest violated the umpires’ Collective Bargaining Agreement.
So Ron Kulpa can do whatever he wants; that’s true. And players and managers can’t do anything about it. But Major League Baseball can, and, often, does. Being an umpire is a difficult job. But omnipotence, it seems, doesn’t actually come with the territory.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.