The Law of the Basebrawler by Sheryl Ring April 2, 2018 Rougned Odor is the second baseman for the Texas Rangers. You read FanGraphs, you know that. Odor has good power, plays decent defense, and really ought to learn to take a walk. Rougned Odor also has a mean right hook. The man on the receiving end of Odor’s punching prowess, Jose Bautista, is currently out of work. That means he needs something to do. And since idle hands are the devil’s playground, let’s give Jose that something. Let’s have Jose Bautista sue Rougned Odor for battery. Now, we already know what battery is from our discussion of beanballs, but let’s refresh our memories just to make sure. 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 charge, 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 law like this one. So let’s take a look at Odor’s punch. It’s certainly a harmful bodily contact, made intentionally, and without Bautista’s consent. Now, when we examined headhunters, the problem was that pesky “assumption of the risk” doctrine. But! Assumption of the risk doesn’t apply to conduct clearly outside the scope of the game. In a case called Ordway v. Superior Court, the California Court of Appeals explained why, while discussing a case called Tomjanovich v. California Sports, Inc. In Tomjanovich, a professional basketball player was severely injured when an opposing player deliberately struck a vicious blow to his face. Tomjanovich sued in federal district court in Texas, and the law of California was applied. The verdict in his favor was in excess of $2 million. The matter settled pending appeal. A verdict for Tomjanovich was clearly proper. He did assume the risk of being hit in the face by a flying elbow in the course of defending against an opponent’s jump shot, suffering a painful insult to his instep by a size-16 foot descending with a rebound, or even being knocked to the court by the sheer momentum of a seven-footer driving home a slam dunk. But the scope of his consent did not extend to an intentional blow considerably beyond the expected risks inherent in basketball. Intentional fouls are part of that game. But where the intent is to injure and the force used is far greater than necessary to accomplish a legitimate objective within the scope of play, a defendant may not prevail on an assumption of risk defense. That sounds an awful lot like Odor here. Intentional punches aren’t used to accomplish a legitimate objective on the field of play, and so Odor did complete an actionable battery. Except… let’s take a look at that video again. The sequence of events is relevant here. First, Joey Bats slides hard into second base. Then Odor shoves Joey Bats. Then Joey Bats pulls back his hand to punch Rougned Odor in what may be the worst, most telegraphed punch ever. And then Odor reminds Bautista that he picked the wrong guy to fight that day. Why does this matter? Because of a doctrine in tort law called “self-defense.” By way of illustration, if a heated argument breaks out between Adam and Brad, and Adam yells, “Brad, I’m going to punch you in the face!” and pulls back his fist to hit Brad, Brad may defend himself by punching Adam first. Based on these circumstances, Brad could have reasonably anticipated that Adam was going to imminently harm him. If Adam is injured and attempts to sue Brad for the intentional tort of battery, Brad can claim self-defense because he was protecting himself in response to Adam’s tort of assault. So, in theory, Odor can say that he responded to Bautista’s attempted punch with a faster punch. In response to that claim, the law will ask if Odor’s conduct was reasonable under the circumstances. Would a reasonable person faced with a very irked Jose Bautista punch him in the face? Maybe, if Bautista is preparing to punch the reasonable person. And if you were wondering if there’s a duty to retreat, there is, but you generally have the right to use force proportionate to what is being threatened. In other words, Joey Bats can sue Rougned Odor. But Odor can claim self-defense, even though he shoved first. And what about criminal charges? Could we charge Odor or Bautista? Actually, the answer is yes. It’s time to talk about Jose Offerman. Offerman once went what might be best characterized as “totally ballistic” while playing for the Long Island Ducks. Hit by a fastball, Offerman charged the mound with his bat and swung at least twice, striking the opposing pitcher and catcher. Offerman was then arrested and charged with assault. (He got sued, too. He lost.) He at first denied ever hitting anyone with a bat, but then ended up serving two years of probation. So why don’t more players get charged with crimes for brawls? It’s because of something called “prosecutorial discretion,” a peculiar phenomenon in American law. In many countries like Germany, prosecutors are required to bring charges in every case they think they have enough evidence to win. But in the United States, prosecutors can pick and choose which defendants to charge and try. And, simply put, that discretion often ends up meaning we don’t see criminal charges in basebrawls. Usually. But there’s no law against it, you see. So that means the next time this happens, it’s possible you could see charges filed. Just pray the prosecutor isn’t in the stands.