Joe West, Austin Davis, and the Theater of the Absurd

A while back, I wrote about Angel Hernandez and his lawsuit against Major League Baseball. In said piece, I noted that “[p]layers 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.)”

It’s time to talk about Country Joe West. West hasn’t sued anybody lately, but he did manage to get himself in a kerfuffle involving the Phillies, Austin Davis, and a piece of paper.

So as to prolong the suspense, it’s worth noting why West is considered a bad umpire. Unlike Angel Hernandez, his reputation isn’t necessarily for creative calls. In fact, back in 2007, The Hardball Times named him baseball’s most consistent umpire (though he called this balk on Tony Cingrani).

No, West is more known for his colorful personality. He was suspended for calling Adrian Beltre the “biggest complainer” in baseball. And he also likes staring matches. Like this staring match with Madison Bumgarner.

And this staring match with Jimmy Rollins.

He likes ejecting people, so much so that there are entire videos on YouTube of Joe West ejecting people. Here he is, ejecting Joe Maddon (whilst also staring at him).

And here, he ejects Jonathan Papelbon, whilst trying not to stare at him.

It also helps, being an umpire, to have the same skin as Luke Cage.

Anyway, country singer, superhero, and umpire Joe West was the umpire Saturday night as the Cubs and Phillies played a baseball game in Philadelphia. As Yahoo! Sports’ Ryan Davis passes along,

As Chicago Cubs third baseman Kris Bryant approached the plate in the eighth inning on Saturday night at Citizens Bank Park, Philadelphia Phillies relief pitcher Austin Davis quickly pulled out his cheat sheet out of his back pocket.

Bryant hit a single, and the game moved on.

Then, as Addison Russell came out to the plate for the next at-bat, Davis did it again. That’s when umpire Joe West approached the mound.

“I saw him take it out and I went, ‘What the heck is that?’” West told the Associated Press after the game.

West cited Rule 6.o2(c)(7), which states that a pitcher may not “have on his person, or in his possession, any foreign substance,” and confiscated the card.

Video is available here.

What’s most notable about West’s interpretation of Rule 6.02(c)(7) is that it’s absolutely wrong. Technically, yes, the Rule does say that “[t]he pitcher shall not… have on his person, or in his possession, any foreign substance.” But there’s also a comment to the Rule, which says this:

Rule 6.02(c)(7) Comment: The pitcher may not attach anything to either hand, any finger or either wrist (e.g., Band-Aid, tape, Super Glue, bracelet, etc.). The umpire shall determine if such attachment is indeed a foreign substance for the purpose of Rule 6.02(c)(7), but in no case may the pitcher be allowed to pitch with such attachment to his hand, finger or wrist.

See, this is important because it necessarily contemplates the possibility that there can be something attached to a hand or wrist that isn’t a foreign substance. So “substance” can’t mean “tangible thing,” otherwise there would be no need for the umpire to determine if something attached to a pitcher’s hand is a “foreign substance” for purposes of the rule. And in Rule 3.01, discussing the ball (yes, there is a rule on the ball), there is actually a list of “foreign substances” provided there: “soil, rosin, paraffin, licorice, sand-paper, emery-paper or other foreign substance.” Read together, Rule 6.02 would seem to refer back to 3.01 and indicate that the pitcher can’t have things like dirt or rosin or something else intended to alter the flight of the ball. To say that a card with scouting reports on it is a “foreign substance” is just an absurd interpretation. West seems not to recognize this.

“I told him we don’t allow him to carry anything on their glove, person or clothing, except in some cases where there’s a rain situation, we allow them to put a rosin bag in their pocket… Other than that, they can’t have anything on the pitcher.”

We’ve talked before about why, when we’re interpreting rules and laws, we try to avoid absurd results. It cannot possibly be the intent of a rule designed to prohibit attempts to alter the flight of the ball to also prohibit the pitcher from having scouting reports on his person. Why the rule against absurd results exists is best illustrated by a fictional case called Regina v. Ojibway, now considered throughout the countries of the British commonwealth as a cautionary tale regarding the dangers of statutory interpretation untethered from statutory intent. (See the end of this post for an excerpt from Regina v. Ojibway, in which a court rules that a horse is a small bird.)

West, for his part, seemed to think it was a close call. Per the Associated Press:

The umpire called the league office after the game and admitted the use of the card may be in a gray area.

“I didn’t want to throw him out,” West said. “I know it’s foreign but he’s not trying to cheat. Maybe he’s trying to get an advantage because he’s reading the scouting report, but it wasn’t pine tar, it wasn’t an emery board, it wasn’t whatever.

“In the long run, maybe they’ll let him (have the card). Right now, my hands are tied until they say yes or no. Right now, until the office says it’s OK to carry this, he can’t do it.”

Of course reading a scouting report is trying to get an advantage! And MLB didn’t exactly give West a full-throated endorsement after the game, saying instead that West was wrong. This makes sense: theoretically, taking West’s argument to its logical conclusion, the ban wouldn’t stop with notecards. Tyler Clippard’s glasses have to go — they’re a foreign substance. In fact, since there’s nothing in the rule saying that clothes aren’t a foreign substance, West’s position basically means that there shouldn’t be clothes on the pitcher either. “Joe West wants naked pitchers” isn’t the takeaway, although it illustrates just how silly things can get in the theater of the absurd.


As promised above, here’s the excerpt from Regina v. Ojibway:

“Fred Ojibway, an Indian, was riding his pony through Queen’s Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused’s misfortune was further heightened by the circumstance of his pony breaking its right foreleg. In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness.

The accused was then charged with having breached the Small Birds Act, s. 2 of which states:

‘Anyone maiming, injuring or killing small birds is guilty of an offense and subject to a fine not in excess of two hundred dollars.’

The learned magistrate acquitted the accused, holding in fact, that he had killed his horse and not a small bird. With respect I cannot agree.

In Light of the definition section my course is quite clear. Section 1 defines `bird’ as a `two legged animal covered with feathers.’ There can be no doubt that this case is covered by this section.

Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not, in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is no offense at all. I believe that counsel now sees his mistake.

Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no concern to this Court.

[…]

Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multilegged animals with feathers as well.

[…]

Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this, let me answer rhetorically: Is a bird any less of a bird without its feathers?”

We hoped you liked reading Joe West, Austin Davis, and the Theater of the Absurd by Sheryl Ring!

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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.

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I’m not positive, but I thought Regina v. Ojibway was a fictitious case.