May 2, 2003

6-4-3

The American Way

by Gary Huckabay

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In Memoriam: Evan Wasserman

On April 28th, Evan Wasserman passed away after a long illness. Evan was a longtime BP supporter, and rabid baseball fan. He joined us at several pizza feeds, where I had the pleasure of making his acquaintance, and I eventually got to know him as a friend. Evan had a great sense of humor, loved the game of baseball, and was a man of generous spirit who brought a smile to people's faces when he walked in the room. He will be greatly missed, and our condolences go out to his wife, Jackie, and his family.

Evan should know that I'll still be trying to beat him in AL-Killebrew, which will be renamed AL-Wasserman in his honor, and he should also know that I'm still not going to trade him A-Rod. Knowing Evan, he's probably starting research for a Scoresheet draft that'll start when we join him. Thanks, Evan, for everything. You will be remembered.

-Gary.

On Tuesday, Florida Marlins' starter A.J. Burnett underwent Tommy John surgery, after exploration of the elbow revealed a torn ulnar collateral ligament. The surgery went well, and Burnett's expected to return fully healthy down the road. Previously, pitchers who have had this surgery take about a year, maybe a year and a half, to get back on the mound and eventually return to form. The procedure and rehab have become something of a commonplace miracle, despite the fact that the rehabilitation regimen's about as appealing as a porta-potty at the Stockton Asparagus Festival.

The real issue here isn't Burnett, however unfortunate his injury is. We wish him the best, and I have no doubts that he'll push the rehab envelope and get back as soon as he can. The real issue here is painfully obvious--was this avoidable? You've already seen a number of perspectives about pitcher abuse, injury likelihood, and the very nature of pitching itself, so I won't go into too much detail here. I think the real interesting issue here is a long-underlying one that's been talked about, but never really addressed. That issue is the balance between performance, overwork, responsibility, and accountability when it comes to handling pitchers. So let's put aside the specific case of Burnett, and examine the issue.

We know that heavy use leads to increased probability of injury and impaired performance. But how does a manager balance his responsibility to the team with his responsibility to protect the health of the pitcher? Does the manager even have a responsibility to protect the health of the pitcher? When you think about it, there's not really any specific business accountability there. Pitchers get hurt. The very nature of the game causes that to happen. And for as much data as we can throw at quantifying the nature of that risk, there are always anecdotes about guys like Randy Johnson, and the macho memories of aging broadcasters and pundits who think today's athletes are coddled. But at the core of the abuse v. winning balance (which is perception-based, not reality-based), there is a lack of symmetric accountability.

If Joe Manager or General Manager (let's call him "Dallas") runs his young starters out there every night, and they pitch pretty well, and he routinely runs them into 130+ pitch counts, but the team does pretty well, he's going to keep his job. Sure, his pitchers, who might, theoretically, be called Paul, Jason, and Bill, may end up with a set of elbow and shoulder ligaments that resemble a Thai noodle salad, but those things happen, right? If another manager has the same guys, and routinely pulls them after throwing 96 pitches and allowing two runs through five innings, and then goes on to lose games because the bullpen blows the lead, that guy's going to take more heat than Rick Santorum at a Log Cabin Republicans meeting. The accountability is all on the side of short-term, on-field performance. Of course, the risk/outcome calculus changes if the pitcher is on a long-term contract.

For the first time, though, there's talk of the creation of an external constraint that would add accountability for pitcher usage decisions that result in injury. You guessed it--there are internal discussions in several organizations about the specter of legal action against clubs for injuries that occur to pitchers because of overuse. Let me make this clear: To the best of my knowledge, no legal action is being considered on behalf of any currently injured pitcher, and no one at BP is advocating that anyone sue anyone. I'm just going to lay out some of the arguments and issues for your consideration. That's it.

I've spent a lot of time the last two days speaking with all sorts of attorneys, and all of them were quick to point out that they didn't think that the specific case of A.J. Burnett was within the purview of their practice, or, for that matter, anyone's practice. One thing people get wrong about attorneys, and other professions like physicians, is that they have a broad understanding about their field. Generally, attorneys know their own little corner of law very well, and remember the basics of the rest from law school. Often times, an involved layperson/defendant in a product liability case will know a heck of lot more about product liability law than a transactional attorney will. So, with that disclaimer out of the way, what are some of the issues surrounding a potential lawsuit by an injured pitcher?

• Proximate Cause
  To win a suit against a club or manager, the player would have to show that the manager's actions actually caused the injury in question. If a pitcher gets hurt pitching for Houston and sues the Astros, he has to show the injury was caused because Jimy Williams ran him out there for 140 pitches instead of 110. The club will counter with the high-pitch outings and bad mechanics the pitcher had in the Red Sox organization in the minors--those were the real factors, and the cumulative damage is just now becoming visible.

• Assumed Risk and Contributory Negligence
  When someone voluntarily undertakes a risky activity, they are assuming a certain amount of risk. Courts don't look kindly upon a race car driver suing a racetrack because he was going too fast and hit a wall at 200 mph. Racing is an inherently risky activity, and drivers assume some risk going in. Same thing is true for pitchers--when they take the mound, they know they can get hurt. And, if they pull the all-too-common Billy Wagner move and understate or conceal their own injuries, they contribute to the negligent state that causes injuries.

• Standard of Practice
  In order for a player to win a suit, he would have to demonstrate that the actions of the manager/pitching coach/whoever was clearly outside of the usual and customary standards and practices of the industry. In the real world, this means that if the majority of management teams in baseball don't understand or don't believe the link between overuse and injury, and their normal course of action is to run Livan out there for 130 pitches on a regular basis, the lawsuit is that much tougher to win.

• Damages
  This one's pretty obvious. You can't sue if you don't incur damages. It's really part of Standing to Bring Action above. If a player's got a 10-year, $125 million contract, and his arm goes all Justin Thompson in the first week of the deal, he still gets paid for the whole deal. He can't sue for money he didn't lose. The player would have to demonstrate damages outside of his current contract. That's a speculative task by nature, and it's an uphill battle in court to sell any numbers you do come up with.

• Worker's Compensation
  This is the biggie, and it kind of sets the bar for all the other conditions that would have to be met in order to win this kind of lawsuit. Worker's comp is all about the employment bargain. You got hurt at work? Well, your only real course of action, barring exceptional circumstances, is a worker's comp claim. From a policy perspective, that means if you get hurt on the job and can't work, you continue to draw a salary, but it also means you don't have standing to bring a case against your employer because of the injury, except in the case of something like really gross negligence. (Insert your own Detroit Tiger joke here.)

  I don't think we're going to see a case like this brought any time soon. In addition to the burden of proof on the player being very, very high, any player or agent who did this would probably turn into something of a pariah very quickly. I do think we'll start to see usage patterns become part of contract negotiations, with player representatives insisting on contract clauses that limit the ways club can use a particular pitcher. Furthermore, there's not an intractable divergence between the interests of the club and the long-term health of the pitcher. In most cases, the club is best served by keeping the pitcher as healthy and effective as possible. Managers have different ideas about fatigue and injuries, and as often as not, pitchers don't want to come out of the game, adding yet another disincentive for conservative treatment.

Over time, as the research about overuse and injury becomes more generally accepted, we'll see this entire issue become less of a concern. As management changes to respond to the problem of pitcher injuries, we'll also see the game change, and it wouldn't be completely surprising to see a pitching renaissance as a result of improved health--something along the lines of the opposite of what we saw during most of the '90s. Should be fun to watch. Unlike, say, continuous legal updates on ESPNews. Brrrr.

Gary Huckabay is an author of Baseball Prospectus. 
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