On Daisuke Matsuzaka and Fans’ Duties by Sheryl Ring February 20, 2019 Remember Daisuke Matsuzaka? The right-hander was Boston’s big-ticket pickup back in 2006, with promises of a gyroball that never panned out. After his injury-plagued tenure in the majors ended, Dice-K went back to Japan and, after a brief, injury-induced hiatus, settled in as a decent mid-rotation starter for the Chunichi Dragons. His 2018 season earned him Comeback Player of the Year honors. Daisuke Matsuzaka has landed himself a ¥65M salary increase to have him sitting pretty at ¥80M for next year. He becomes the third highest earning pitcher behind Kazuki Yoshimi and Keisuke Tanimoto in 2019. #NPBeng https://t.co/4hxBMFlTSk — Dragon Soul (@chunichisoul) December 2, 2018 Then things took a turn. If you’re at all familiar with Matsuzaka’s time with the Red Sox, you know that he wasn’t exactly a workhorse in Boston, with injuries ranging from Tommy John surgery to neck stiffness attenuating his MLB career. But the injury the 38-year-old suffered most recently can only be described as bizarre. Per the Japan Times: Chunichi Dragons pitcher Daisuke Matsuzaka took leave from his Central League club on Sunday in order to treat a right shoulder injury sustained when an overzealous fan pulled his arm last week. Yes, that’s right – a fan of Dice-K thought it would be a swell idea to pull on the hurler’s right arm during a fan outreach event. The fan evidently pulled so hard that it caused inflammation in the right-hander’s shoulder, resulting in Chunichi shutting him down. Daisuke remains quite popular in Japan, however, leading some to speculate that Chunichi might actually sue the fan who pulled on the pitcher’s arm – and that the fan might even see jail time. A Japanese lawyer site hypothesized how much Chunichi might possibly sue for to the fan that pulled Daisuke Matsuzaka's arm. Hint, they speculate a lot. It also mentions the possibility of 2 years prison time or a 300,000JPY fine for personal injuryhttps://t.co/pnRULD2ZrD #npb — NPB on reddit (@NPB_Reddit) February 14, 2019 Now, I am not an expert in Japanese law. But this situation inspired me to consider an interesting hypothetical: what if this had happened in the United States? Let’s say that, during a meet-and-greet with fans in Queens, an admirer were to grab Noah Syndergaard’s right arm and pull it because he wanted an autograph, and as a result, Syndergaard suffered shoulder inflammation and was shut down. What recourse would the Mets have against the fan? (My apologies to Mets fans for my use of Syndergaard in this distressing thought experiment.) The first part of this analysis is actually pretty easy – we’ve covered it before. Battery is a (1) harmful bodily contact, (2) with intent to cause that bodily contact, and (3) without consent. Assault is apprehension of that intentional harmful bodily contact. In other words, actual physical contact isn’t necessary for an assault claim, whereas it is necessary to qualify as battery. Some people just call assault “attempted battery,” but that’s not exactly right; it’s a little more complicated than that. Assault and battery vary a bit from state to state and are creatures of state laws like this one. Our hypothetical tug on Thor’s arm is a harmful bodily contact. The fan in our scenario intended to pull on the pitcher’s arm, and he did so without consent. Presto! We have a battery. And in case you’re wondering, the important thing to remember here is that it isn’t necessary for the tortfeasor – that’s the fancy legal name for our extremely unwise fan – to intend to harm Thor. Instead, he simply needs to intend to make contact with him. So the Mets can sue the fan for battery, right? Actually… no. In American law, a right to sue is called a “cause of action” or (if you want to be really technical) “chose in action.” In determining whether or not a party can sue, we have to figure out who owns that cause of action – who has the right to actually present this case to a court? This inquiry is called standing, and it’s so important that it’s actually written into Article III of the United States Constitution. That’s right – it’s quite literally unconstitutional for a federal court to hear a case where the suing party doesn’t have standing to bring the suit. State courts don’t usually have to worry about Article III standing (there are always, of course, exceptions), but state constitutions generally have their own standing requirements that a plaintiff must follow. So now that we know how important standing is, what does it really mean? Take it away, Max Kennerly: “Standing” refers to a particular plaintiff’s ability to bring a particular claim. If your third cousin gets hit by a drunk driver, your third cousin has “standing” to sue the drunk driver. You, however, do not have “standing” to bring that lawsuit. It sounds like such a straightforward issue, but, thanks to years of dubious Supreme Court precedent, “standing” is now a doctrinal morass that sporadically results in the dismissal of important cases, leaving a wide swath of potentially illegal or unconstitutional actions unreviewable by any court. How can this be so complicated, you ask? Because the Article III language concerning standing is not the test that courts actually apply to determine if a litigant has standing. In fact, the word “standing” isn’t in the part of the Constitution that governs standing. We could go into more about why that is, but for now you can simply thank the Supreme Court for its decision in Lujan v. Defenders of Wildlife, a case that nobody really understands – including the Supreme Court. (Duke University’s Richard J. Pierce once said that “Justice Scalia’s opinion in Defenders is an insupportable judicial contraction of the legislative power to make judicially enforceable policy decisions.”) Under Lujan, to have the right to bring a lawsuit, the Plaintiff has to show three things: 1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Courts still spend entire decisions trying to parse out what, exactly, this all means. But it will suffice to say that while in our hypothetical Syndergaard has standing to sue the fan for personal injury, the Mets don’t have standing to sue the fan for personal injury. That’s because the injury occurred to Syndergaard, not to the Mets, and the Mets don’t own Syndergaard – just the right to employ him. But we’re not done yet! Causes of action can in many states (depending on the state and what the cause of action is for) be assigned. In other words, if I slashed Dan Szymborski’s tires, Dan could sell (assign) his right to sue me to Meg Rowley. (Editor’s note: Oh dear.) The general rule is that causes of action for personal injury aren’t assignable, but there are always exceptions. One special kind of assignment is called subrogation, which you’ve probably heard of in the context of insurance companies. Essentially, if the Mets’ insurance carrier paid for Thor’s medical care and recovery from having his arm pulled, they would have the right to attempt to recoup the money spent in the course of his treatment. In many states, a subrogee has the right and standing to sue in its own name, so depending on a variety of factors – where the injury occurred, where the suit was brought, where the bills were paid – the Mets might (might!) be able to sue in their own name as subrogee of Noah Syndergaard. (Thankfully, no actual Syndergaards were harmed in the making of this article.) One last thing: Could the Mets sue the fan for the lost profit from wins they could have had if Thor hadn’t been hurt? Probably not. Those kinds of damages are entirely speculative. The Mets could get their money back for rehabbing Thor, but the lost wins wouldn’t be recoverable. Even this hypothetical has its limits.