No. 02-2793

IN THE

Supreme Court of the United States

SAINT TAMMANY PARISH SCHOOL CORPORATION, ET AL.Petitioners,

v.

PATRICK AND MELISSA AMENDOLA, ON BEHALF OF THEIR MINOR CHILD, DANNY

Respondents._________

On Writ of Certiorari tothe United States Court of Appeals

for the Fourteenth Circuit _________

BRIEF OF PETITIONERS_________

TEAM NUMBER 11

Counsel for Petitioners

QUESTIONS PRESENTED

I. Whether the court of appeals properly held that the haircut policy violates Plaintiff’s

Due Process and Equal Protection rights.

II. Whether the Fourteenth Circuit Court of Appeals correctly refused to adopt the

baseball rule for Tulania.

i

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES.............................................................................................iv

STATEMENT OF THE CASE............................................................................................1

ARGUMENT.......................................................................................................................3

I. THE HAIRCUT POLICY VIOLATES NEITHER RESPONDENT’S DUE PROCESS NOR EQUAL PROTECTION RIGHTS..............................................5

A. DUE PROCESS.......................................................................................................5

1. The Fourteenth Circuit Incorrectly Categorized Hair Length Choice as a Fundamental Right................................................................................5

2. Application of Rational Basis Review Reveals that the Haircut Policy does not Violate Respondent’s Substantive Due Process Rights.................8

3. Enforcement of the Haircut Policy Against Danny Satisfies the Requirements of Procedural Due Process..................................................11

B. EQUAL PROTECTION........................................................................................12

1. The Haircut Policy does not Discriminate Between Genders Because there is no Unequal Burden Between Male and Female Athletes......................................................................................................12

II. THIS COURT SHOULD ADOPT THE BASEBALL RULE AS A MATTER OF LAW FOR TULANIA.........................................................................16

A. JUDICIAL PRECEDENT WEIGHS IN FAVOR OF ADOPTING THE BASEBALL RULE AND RESPONDENTS DO NOT PRESENT ANY RATIONALE FOR BREAKING WITH THAT PRECEDENT.............................................................................................16

1. The Baseball Rule Operates Across a Majority of Jurisdictions with Only Minor Variations.......................................................................16

2. The Arguments Relied on by Courts Who Decline to Adopt the Baseball Rule Do Not Apply in this Case..................................................18

B. THE POPULARITY OF BASEBALL AS A SPECTATOR SPORT AND THE INEVITABILITY OF SPECTATOR INJURIES COMPELS THE ADOPTION OF THE “BASEBALL RULE.”..............................................19

ii

1. Foul Ball Injuries to Spectators are an Inherent Risk to the Game of Baseball and Intra-State Occurrences Are Not Required to Formulate a Rule on First Impression.........................................................................20..............................................................................................................................

2. The Baseball Rule Allows Participation in a Popular, Albeit Risky Activity Without Altering the Nature of the Game or Resorting to Arbitrary Line-Drawing.........................................................................23

iii

TABLE OF AUTHORITIESPage

Cases

Akins v. Glens Falls City School Dist., 424 N.E.2d 531 (N.Y. 1981)......................................................................16, 24, 26

Alwin v. St. Paul Saints Baseball Club, 672 N.W.2d 570 (Minn. Ct. App. 2003)................................................................19

Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972)...................................................................................7

Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977)...........................................................................13, 15

Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219 (Mich. Ct. App. 2001)....................................................17, 22, 24

Breen v. Kahl, 419 F.2d 1034 (1969)...........................................................................................7, 8

Brisson v. Minneapolis Baseball & Athletic Ass’n,240 N.W. 903 (Minn. 1932).............................................................................17, 21

Cincinnati Baseball Club, Co. v. Eno 147 N.E. 86 (Ohio 1925)........................................................................................25

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...............................................................................................12

Clark v. Goshen Sunday Morning Softball League 493 N.Y.S.2d 262 (N.Y. App. Div. 1985).............................................................19

Clark v. Jeter,486 U.S. 456, 461 (1988).......................................................................................13

Collins v. City of Harker Heights, 503 U.S. 115 (1992)................................................................................................6

Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994)...............................................................................23

Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970).................................................................................7

Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973).......................................................................14, 15

iv

Earwood v. Cont’l Se. Lines, Inc., 539 F.2d 1349 (4th Cir. 1976).................................................................................8

Edward C. v. City of Albuquerque,241 P.3d 1086 (N.M. 2010)...................................................................................18

FCC v. Beach Comm., Inc.,508 U.S. 307 (1993).................................................................................................6

Gfel v. Rickelman, 441 F.2d 444 (6th Cir. 1971)...................................................................................8

Griswold v. Connecticut, 381 U.S. 479 (1965).................................................................................................6

Hayden ex rel A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 575 (7th Cir. 2014).............................................................5, 8, 9, 13

Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974).....................................................................................7

I.N.S. v. Fed. Labor Relations Auth., 855 F.2d 1454 (9th Cir. 1988)...............................................................................10

Jespersen v. Harrah's Op'g Co., 444 F.3d 1104 (9th Cir. 2006)...............................................................................13

Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972), cert. denied 409 U.S. 989 (1972).........................8, 9

Kelley v. Johnson,425 U.S. 238, 240 (1976).........................................................................6, 7, 10, 11

Knott v. Missouri Pac. R.R. Co., 527 F .2d 1249 (8th Cir. 1975)..................................................................13, 14, 15

Loving v. Virginia, 388 U.S. 1 (1967)...............................................................................................6, 12

Maisonave v. Newark Bears Professional Baseball Club, Inc.,881 A.2d 700 (N.J. 2005)...............................................................19, 21, 22, 23, 26

McCarthy v. Darman, 372 F. App'x 346 (3d Cir. 2010)............................................................................11

McNiel v. Forth Worth Baseball Club, 268 S.W.2d 244 (Ct App. Tex. 1954)....................................................................21

v

Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (N.Y. 1929)......................................................................................25

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).............................................................................................8

Palko v. Connecticut, 302 U.S. 319 (1937).................................................................................................6

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).................................................................................................6

Quinn v. Recreation Park Ass’n,46 P.2d 144 (Cal. 1935)...................................................................................20, 25

Reed-Jennings v. Baseball Club of Seattle, L.P.,351 P.3d 887 (Wash. Ct. App. 2015).....................................................................21

Reno v. Flores, 507 U.S. 292 (1993).............................................................................................5, 9

Rountree v. Boise Baseball, LLC 296 P.3d 373 (Idaho 2013)...............................................................................17, 18

Sandin v. Connor, 515 U.S. 472 (2010).................................................................................................9

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).................................................................................................6

South Shore Baseball LLC v. DeJesus, 11 N.E.3d 903 (Ind. 2014).....................................................................................18

Teixiera v. New Britain Baseball Club, Inc.,41 Conn. L. Rptr. 777 (Conn. Super. Ct. 2006).....................................................22

Turner v. Mandalay Sports Entm’t 180 P.3d 1172 (Nev. 2008)..............................................................................23, 25

U.S. v. Virginia, 518 U.S.515, 531 (1996)..............................................................................6, 12, 13

Verneris v. Wang 49 Conn. L. Rptr. 522 (Conn. Super. Ct. 2010)..............................................17, 22

Washington v. Glucksberg, 521 U.S. 702 (1997)........................................................................................5, 6, 8

vi

Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084 (5th Cir. 1975)...............................................................................14

Winn v. Frasher, 777 P.2d 722 (Idaho 1989)....................................................................................19

Zalewska v. Cty. of Sullivan, 316 F.3d 314 (2d Cir. 2003)...................................................................................10

................................................................................................................................................

Constitutional Provisions, Statutes, and Rules

U.S. CONST amend. XIV § 1, cl. 3.......................................................................................5

U.S. CONST amend. XIV § 1, cl. 4.....................................................................................12

ARIZ. REV. STAT. ANN. § 12–554 (1999)..........................................................................17

COLO. REV. STAT. ANN. § 13–21–120 (1994)...................................................................17

745 ILL. COMP. STAT. ANN. 38/10 (West 1992)................................................................17

N.J. STAT. ANN. § 2A:53A–43 (West 2006).....................................................................17

SUP. CT. R. 15....................................................................................................................11

Other Authorities

Maury Brown, MLB Sees Nearly 73.8 Million In Attendance For 2015, Seventh-Highest All-Time,

Forbes (Oct. 6, 2015).............................................................................................21................................................................................................................................................

Walter T. Champion, Jr., Fundamentals of Sports Law, (2d Ed. 2004)........................................................................................................23

................................................................................................................................................

Javier Diaz, Beware of Flying Bats: An Examination of the Legal Implications of Maple Bat Injuries in Major League Baseball,

22 Seton Hall J. Sports & Ent. L. 311 (2012)........................................................20

Ross H. Freeman, The (Hot) Dog Days Of Summer: Missouri's “Baseball Rule” Takes A Strike,

80 Mo. L. Rev. 559 (2015)....................................................................................23

vii

David Horton, Rethinking Assumption of Risk and Sports Spectators, 51 UCLA L. Rev. 339 (2003)................................................................................25

................................................................................................................................................Wex S. Malone, Contributory Negligence and the Landowner Cases,

29 Minn. L. Rev. 61 (1945)...................................................................................24

Andrew M. Milsten et al, Variables Influencing Medical Usage Rates, Injury Patterns, and Levels of Care for Mass Gatherings,

Prehospital and Disaster Medicine (Dec. 2003)....................................................21................................................................................................................................................

James E. Winslow & Adam O. Goldstein, Spectator Risks at Sporting Events 4 Internet J. L., Healthcare & Ethics (2006)..........................................................20

viii

STATEMENT OF THE CASE

Respondents Frank and Melissa Amendola are residents of Mandeville, Tulania. Their

son, Danny, attends St. Paul’s High School, which is run by Saint Tammany Parish School

Corporation (“School Corporation”). R. at 32. The School Corporation is operated and controlled

by St. Paul’s School Board. Id.

In order to “promote discipline, maintain order, secure the safety of students, and provide

a healthy environment conducive to academic purposes” the School Corporation instituted Policy

5511, the “Dress and Grooming” policy. R. at 33. This policy mandates that the School

Corporation’s superintendent institute a policy establishing “dress requirements for members of

athletic teams, bands, and other groups representing the [School] Corporation at a public event.”

Policy 5511 designates the school principal as the arbiter of student dress and grooming. Id.

In conjunction with Policy 5511, the School Board enacted the Athletic Code of Conduct

(“the Code”), applicable to student athletes at St. Paul’s High School. Concerning the hair styles

of male and female student athletes, the Code provides that:

Hair [s]tyles which create problems of health and sanitation, obstruct vision, or call undue attention to the athlete are not acceptable. Athletes may not wear haircuts that include insignias, numbers, initials, or extremes in differing lengths. Mohawks are not acceptable, and hair coloring is not permitted. Each varsity head coach will be responsible for determining acceptable length of hair for a particular sport. Ask a coach before trying out for a team if you have a question regarding hair styles.

R. at 34. In accordance with the Code’s mandate, Coach Belichick, varsity head coach of

St. Paul’s High School boys’ baseball team, established a “Haircut Policy.” The Haircut Policy

ix

required all baseball players to maintain their hair at a length above their ears, eyebrows, and

collars. Id.

On October 25, 2010, Danny tried out for the St. Paul’s High School tenth grade boys

baseball team, despite being in noncompliance with the Haircut Policy. The team’s coaches

informed him that his noncompliance would not preclude him from joining the team, but would

prevent him from participating in practice or games. Id. The following day Coach Belichick met

with Melissa Amendola regarding the application of the Haircut Policy to Danny. Id. At this

meeting Coach Belichick explained that the purpose of the Haircut Policy helped to develop

team unity through uniformity, and also promoted an image of the team as “clean cut”.1

On October 27, 2010 the principal of St. Paul’s High School, Principal Kraft, informed

Melissa Amendola that Danny would not be exempted from the Haircut Policy. Id. On October

29, 2010, Danny was informed that he made the baseball team, and despite having a hair length

in noncompliance with the Haircut Policy, was allowed to practice from October 29, 2010

through November 2, 2010. R. at 34-35. On November 1, 2010, School Corporation

Superintendent Goodell met with Melissa Amendola, who presented her opinion that the Haircut

Policy was unconstitutional. Like Principal Kraft, Superintendent Goodell disagreed with the

position of the Amendolas, and refused to exempt Danny from the Haircut Policy. Id. On

November 2, 2010, the boys’ baseball coaches informed team members that if they were not in

compliance with the Haircut Policy by November 4, they would be removed from the team. Id.

On November 4, Danny remained in noncompliance with the Haircut Policy, and was

subsequently released from the team. Id. The following year, Danny complied with the haircut

policy and resumed playing varsity baseball at St. Paul’s High School. R. at 36.

1 During his district court trial testimony, Coach Belichick reiterated that the purpose of the Haircut Policy was to “build uniformly [sic] conformity with all the boys” because it “builds togetherness. R. at 9.

x

On December 7, 2011, Jesuit High School, a subsidiary of the School Corporation, hosted

a high school baseball tournament at its Jesuit Stadium facility (the “Stadium”). Ms. Amendola

attended in order to cheer for Danny. His participation was of great interest to Ms. Amendola,

not only as a mother, but also as a lifetime fan of the game of baseball. R. at 36.

Ms. Amendola entered the Stadium after presenting a general admission ticket. This

ticket included an explicit warning about the dangers that baseball poses for fans, specifically the

risk of being struck by a batted or thrown ball outside the field of play. This warning, which Ms.

Amendola admits she did not read, informs all spectators that they, by redeeming the ticket,

assume this risk. The Petitioners provided this warning, acknowledging the unpredictable nature

of the game of baseball, even though there had never been a significant spectator injury at the

Stadium. R. at 37.

Ms. Amendola, upon redeeming the ticket, chose to sit in the bleachers. As she made her

way there, she passed by several large signs that bore the same warning: that all spectators were

at risk of being struck during the game or during pre-game warm-ups because batted and thrown

balls might leave the field of play at any time and in unpredictable directions. R. at 36. Were she

concerned about this risk, the area behind home plate contained numerous seats that were

screened from errant balls by a protective netting and she might have chosen to sit in the safer

area. Instead, she continued to the open seating beyond the outfield. Just prior to the first pitch,

the Stadium issued an announcement over the loudspeaker that warned all spectators to be alert

that balls that might be batted or thrown into the stands during the game. That afternoon, while

returning to her seat from the restroom, Ms. Amendola was struck by a batted ball, just as she

had been warned might happen, on her ticket, by signs throughout the stadium, and by public

address. Id.

xi

ARGUMENT

xii

I. THE HAIRCUT POLICY VIOLATES NEITHER RESPONDENT’S DUE PROCESS NOR EQUAL PROTECTION RIGHTS

A. DUE PROCESS

1. The Fourteenth Circuit Incorrectly Categorized Hair Length Choice as a Fundamental Right

Individual liberty rights are protected under the Due Process Clause of the Fourteenth

Amendment against unconstitutional deprivation by state government officials, even when fair

procedure is provided. U.S. CONST amend. XIV § 1, cl. 3. This protection, manifested in the

principle of substantive due process, limits the government’s ability to infringe on individual

liberty rights. Reno v. Flores, 507 U.S. 292, 302 (1993).

To protect against such unconstitutional deprivation, courts utilize a tiered structure of

scrutiny, employing various degrees of analytical rigor contingent on how the restricted right is

categorized. Regulations that impose on “fundamental rights” are subject to an exacting strict

scrutiny analysis, where the challenged restriction is deemed unconstitutional unless the

government satisfies the substantial burden of proving the restriction is “narrowly tailored to

serve a compelling government interest.” Reno, 507 U.S. at 302; See Hayden ex rel A.H. v.

Greensburg Cmty. Sch. Corp. (“Hayden”), 743 F.3d 569, 575 (7th Cir. 2014) (“To limit or

curtail this or any other fundamental right, the state has a substantial burden of justification”)

(internal quotation marks omitted). Non-fundamental rights receive the far less robust protection

of rational basis review, and any related restriction withstands scrutiny if it is “rationally related

to legitimate government interests.” Washington v. Glucksberg, 521 U.S. 702, 728 (1997). Even

if a non-fundamental right restriction is solely based on “rational speculation unsupported by

evidence or empirical data,” it is permissible. FCC v. Beach Comm., Inc., 508 U.S. 307, 315

(1993).

xiii

Traditionally, courts have been extremely reluctant to expand the scope of fundamental

rights, as guidance on what constitutes a fundamental right has been “scarce and open-ended.”

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Outside of the liberties articulated

in the Bill of Rights, substantive due process has only been used to protect rights so significant as

to be “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325, 326

(1937). These rights include the right to marriage, Obergefell v. Hodges, 135 S. Ct. 2584 (2015);

Loving v. Virginia, 388 U.S. 1 (1967), procreation, Skinner v. Oklahoma ex rel. Williamson, 316

U.S. 535 (1942), contraception, Griswold v. Connecticut, 381 U.S. 479 (1965), and child rearing

and education, Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925). This restrictive view of the

doctrine’s application was recently reaffirmed in Washington v. Glucksberg, 521 U.S. at 701-21.

Reacting to the concern that the “liberty protected by the Due Process Clause be subtly

transformed into the policy preferences of the Members of this Court”, the court in Glucksberg

held that fundamental rights are limited to those that are “objectively deeply rooted in this

Nation’s history and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed.” Id. (internal quotations omitted).

Respondents’ contention that hairstyle choice constitutes a fundamental right directly

contradicts this Court’s position. Analogous regulations to the Haircut Policy were challenged in

Kelley v. Johnson, where male police officers were subject to restrictions on the “style and length

of hair.” 425 U.S. 238, 240 (1976). This Court quickly disposed of the idea that hair length

choice is a fundamental right, contrasting hair style with the fundamental rights to “procreation,

marriage, and family life”. Id. at 244. Hairstyle choice “of course, is distinguishable” from such

protected interests, and was determined by this Court to not constitute a fundamental right. Id.

xiv

The Fourteenth Circuit argues that Kelley is distinguishable from the case at hand

because Kelley involved a regulation governing the hairstyle of a state police officer, and not a

citizen. Such a distinction fails to account for the fact that Kelley’s discussion of hairstyle choice

took place outside the context of the case’s specific facts, and was not limited in scope to the

fundamental rights of police officers. In its rejection of a fundamental right to hairstyle choice,

this Court expressly stated that it was considering whether “the citizenry at large” had a liberty

interest in hairstyle. Id. at 244. Yet the Fourteenth Circuit ignored this clear declaration of the

discussion’s applicability, and incorrectly declined to adopt Kelley’s mandate that hairstyle

regulations do not implicate a fundamental right.

Instead of adopting Kelley, the Fourteenth Circuit contends that hair length choice

implicates a fundamental right, relying almost exclusively on the “standard used by the Seventh

Circuit”, which the court applied to the Haircut Policy. This standard, which defines hairstyle

choice as a fundamental right and subjects related regulations to a strict scrutiny analysis, was

implemented in an outdated line of cases composed of Breen v. Kahl, and its progeny. See R. at

5-13 (citing Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974); Arnold v. Carpenter, 459 F.2d 939

(7th Cir. 1972); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034

(7th Cir. 1969)). This reliance on the Breen line of cases is misplaced, as this Court limited

fundamental liberty rights in Glucksberg to those so “deeply rooted in this Nation’s history …

that neither liberty nor justice would exist if they were sacrificed,” which resulted in Breen being

explicitly overruled. Glucksberg, 521 U.S. at 721. In Hayden, the Seventh Circuit stated there

was “no doubt” that the Supreme Court’s definition of fundamental liberty rights overturned the

Breen line of cases, and held that hairstyle choice was therefore outside the purview of

fundamental liberty interest protection. 743 F.3d at 575.

xv

This holding aligned the Seventh Circuit with the preexisting consensus that grooming

restrictions, and other analogous regulations, do not implicate fundamental rights. See Earwood

v. Cont’l Se. Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976) (holding a hair length regulation

“does not affect a fundamental right”); Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972)

(determining that there is no fundamental right to beard length), cert. denied 409 U.S. 989

(1972); Gfel v. Rickelman, 441 F.2d 444, 446 (6th Cir. 1971) (rejecting argument that a dress

code restricting hair length implicated a fundamental right). The Fourteenth Circuit’s adoption of

the overruled Breen standard is in direct conflict with superseding Seventh Circuit precedent,

Circuit Court opinions from around the country, and this Court’s position on the scope of

fundamental rights. Thus, this Court should find that Respondent’s right to determine his hair

length is a non-fundamental right, and should apply rational basis review, not strict scrutiny.

2. Application of Rational Basis Review Reveals that the Haircut Policy does not Violate Respondent’s Substantive Due Process Rights

In determining the appropriate degree of scrutiny to apply, the Fourteenth Circuit

contends that if hairstyle choice is considered a right, then it is necessarily must be a

fundamental right subject to strict scrutiny. See R. at 7 (characterizing the district court’s holding

that hairstyle choice is a “right” as aligning with the Fourteenth Circuit’s assertion that it is a

“fundamental right”). This dichotomous interpretation of the Due Process Clause, where

individual interests either receive the full protection of substantive due process or none at all,

fundamentally misinterprets the Fourteenth Amendment. It is well established that there is a

subset of liberty interests that, while not recognized as fundamental, nevertheless receive some

substantive due process protection. E.g., Reno v. Flores, 507 U.S. at 303.

A regulation restricting these non-fundamental rights is subject to rational basis review,

where the plaintiff must demonstrate that the regulation bears no rational relation to a legitimate

xvi

government interest. Id. at 293. These intermediary rights occupy the ground between

fundamental rights, which receive strict scrutiny, and privileges, which receive no substantive

due process protection. See Sandin v. Connor, 515 U.S. 472 (2010) (finding that the Due Process

Clause did not protect a prison inmate’s privilege of being free from disciplinary segregation).

While it is well established that hairstyle choice does not implicate a fundamental right, it

remains an open question whether the choice of hair length, and other choices of personal

appearance, are afforded any due process protection. See Hayden, 743 F.2d at 576 (finding that

while “hair length is not a fundamental right, there is a residual substantive limit” on related

government regulations); Contra Karr, 460 F.2d at 613 (holding that there is “no such right” as

to hairstyle choice). For purposes of analyzing the Haircut Policy, however, this disagreement is

irrelevant. Even if hair length choice is a non-fundamental right and thus rational basis review is

applicable, this Court’s prior validation of “esprit de corps”, or a feeling of fellowship within a

group, as a legitimate interest reasonably related to personal appearance regulations dictates that

the Haircut Policy does not violate the Due Process Clause.

The Fourteenth Circuit alleges that Petitioners do “not offer any reasons for its policy

which would withstand any level of constitutional scrutiny.” R. at 9. This contention entirely

overlooks this Court’s articulation of legitimate government interests in Kelley, which forecloses

Respondents’ ability to argue that the Petitioners’ justification does not withstand rational basis

review. Looking to the proffered justification for a hair length policy, this Court held that the

intent to build “esprit de corps” through uniformity is a “sufficiently rational justification for

regulations so as to defeat [a] claim based on the liberty guarantee of the Fourteenth

Amendment.” Kelly, 425 U.S. at 248.

xvii

Following Kelley, acceptance of the esprit de corps justification as being rationally

related to a legitimate government interest has been consistently applied by courts across the

country. The School Corporation’s justification that the Haircut Policy “builds togetherness”

falls squarely within this universally accepted rationale. See McCarthy v. Darman, 372 F. App'x

346, 350 (3d Cir. 2010) (holding it is “without doubt” esprit de corps is a vital and rational

interest); Zalewska v. Cty. of Sullivan, 316 F.3d 314, 317 (2d Cir. 2003) (finding that the desire

to promote fellowship between employee van drivers justified uniform regulations under rational

basis review); I.N.S. v. Fed. Labor Relations Auth., 855 F.2d 1454, 1466-67 (9th Cir. 1988)

(finding esprit de corps as a legitimate government interest rationally related to a regulation

prohibiting customization of union member uniforms).

The Fourteenth’s Circuit’s contention that the Haircut Policy violates Respondent’s Due

Process Rights results from a fundamental misunderstanding of this Court’s articulation of

substantive due process. Haircut choice is in no way so “implicit in the concept of ordered

liberty” Washington, 521 U.S. at 721, as to warrant fundamental liberty rights protections, as this

Court has already found. Kelley, 425 U.S. at 238. Instead, haircut choice must receive, at a

maximum, the more limited protection of rational basis review. This Court has determined that a

regulation intended to build fellowship through uniformity withstands rational basis review, and

that is the precise intent behind the baseball team’s Haircut Policy. As such, this Court should

find that there is no violation of substantive due process.

3. Enforcement of the Haircut Policy Against Danny Satisfies the Requirements of Procedural Due Process

Respondents did not challenge that application of the Haircut Policy to Danny violated

his right to procedural due process on appeal to the Fourteenth Circuit. R. at 3. Subsequently, this

xviii

Court may deem the issue waived unless Respondents’ brief raises objection to the Fourteenth

Circuit’s lack of consideration. SUP. CT. R. 15. If this Court does consider the issue, the ample

notice and opportunity for hearing provided to the Respondents prior to enforcement of the

Haircut Policy satisfies procedural due process requirements.

In Matthews v. Eldridge, this Court considered what level of procedure is sufficient for a

regulation to satisfy due process. There, this Court stated that the:

Essence of due process is [the] requirement that [a] person in jeopardy of serious loss be given notice of [the] case against him and opportunity to meet it; all that is necessary is that procedure be tailored, in light of decision to be made, to capacities and circumstances of those who are to be heard, to insure that they are given meaningful opportunity to present their case.

424 U.S. 319, 349 (1976). The application of the Haircut Policy to Danny meets this

requirement. Danny was given notice of his noncompliance with the Haircut Policy ten days

before it was enforced. R. at 34. In the interim, Respondents were provided with not one, but

three opportunities to present their case. R. at 35. Such notice and opportunity for hearing fully

negates the “risk of an erroneous deprivation” that procedural due process protects against,

Matthews, 424 U.S. at 321. This position is further validated by the Respondents’ abandonment

of the argument on appeal. R. at 3. As such, this Court should find that application of the Haircut

Policy to Danny satisfied the requirements of procedural due process.

B. EQUAL PROTECTION

1. The Haircut Policy does not Discriminate Between Genders Because there is no Unequal Burden Between Male and Female Athletes

Respondent also alleges that the Haircut Policy violated his right to equal protection.

Under the Fourteenth Amendment, states are prohibited from denying “any person within its

jurisdiction the equal protection of laws.” U.S. CONST amend. XIV § 1, cl. 4. Similar to the Due

xix

Process Clause, regulations challenged under the Equal Protection Clause are subject to tiered

scrutiny, where a different standard of scrutiny is applied based on the regulation’s classification.

“Suspect” classifications such as race, origin, or fundamental rights receive strict scrutiny,

Loving v. Virginia, 388 U.S. at 11, while regulations that classify on a non-suspect basis are

analyzed under rational basis review. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

440-41 (1985).

Regulations that classify individuals on a gender basis are considered to be quasi-suspect.

Id. at 440-42. Courts apply an intermediate level of scrutiny to such regulations, which lies

between the “extremes of rational basis review and strict scrutiny.” Clark v. Jeter, 486 U.S. 456,

461 (1988). Under intermediate scrutiny, once the challenging party has established that the

regulation discriminates on the basis of sex, the responding party must demonstrate that there is

an “exceeding persuasive justification” for the regulation. U.S. v. Virginia, 518 U.S. 515, 531

(1996).

Within the context of employment and school regulations, a well-developed doctrine of

law governs the validity of gender differentiated grooming standards. This doctrine dictates that

differing grooming standards do not discriminate on the basis of gender as long as they are

comparable. The comparability test consists of three prongs: 1) that the regulation has some

justification in commonly accepted social norms or generally accepted community standards; 2)

that the regulation is reasonably related to a legitimate interest; and 3) that the regulation is

applied in a manner that does not impose an unequal burden. Hayden, 743 F.3d at 577-79.

The challenging party bears the burden of establishing that discrimination on the basis of

sex has occurred. Upon such a showing, the burden then shifts to the defending party to establish

an “exceedingly persuasive justification for that action.” Virginia, 518 U.S. at 524; See Jespersen

xx

v. Harrah's Op'g Co., 444 F.3d 1104, 1108-10 (9th Cir. 2006) (finding that the burden of

establishing the existence of unequal treatment is on the challenging party); Knott v. Missouri

Pac. R.R. Co., 527 F .2d 1249, 1251 (8th Cir. 1975) (finding that after the challenging party

demonstrates that discrimination based on gender has occurred, “the burden then shifts to” the

defending party).

Under this analysis, hair length restrictions have been unanimously found by courts to not

constitute gender discrimination. See Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th

Cir. 1977) (stating that courts are “unanimous” in their validation of hairstyle regulations); Knott,

527 F.2d at 1252 (upholding a male only hair length restriction as part of an employment

regulation governing standards of dress); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084,

1092 (5th Cir. 1975) (finding no gender discrimination where a restriction precluded the hiring

of long haired men); Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973) (affirming male

hair length regulation as part of a regulation governing the hair style of male and female

employees).

Two stipulated facts are relevant to whether the grooming policies at issue are

comparable for males and females. The first of these is the provision of the Code, applicable to

both male and female athletes, which regulates hair style. R. at 34. This provision prohibits a

number of hair styles, including mohawks, dyed or colored hair, hairstyles that include

“insignias, numbers, initials, or extremes in differing length”, and any haircut that detrimentally

effects health, sanitation, or vision. Id. The provision further delegates to each varsity head coach

the responsibility of determining the acceptable hair length for their respective team. The second

of these facts is the requirements of the Haircut Policy, which mandates that players maintain a

hair length above their ears, eyebrows, and collars. Id.

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The Fourteenth Circuit contends that the parties’ stipulation to these two provisions is

insufficient to overcome an equal protection challenge, as the record’s absence of any female

exclusive regulations precludes the court from making a determination that there was a

comparable burden placed on both male and female athletes. R. at 4. (“[B]ecause the record tells

us nothing about comparable grooming standards applied to girls playing softball, the evidence

entitles the Amendolas to judgment on their sex discrimination claims”). Yet the burden for

proving the unequal treatment prong of an equal protection gender discrimination claim rests on

the challenging party. The absence in the record of any female exclusive regulations does not

discharge this burden, but only makes the task of proving that burden easier for Respondents. If

Petitioners had produced evidence of other, non-hair related regulations applicable only to

female athletes (a curious requirement by the Fourteenth Circuit, given that Respondents

challenged only the Haircut Policy, and no non-hair related portions of the Code), then these

regulations would weigh against the contention that the Haircut Policy produced an unequal

burden. But in the absence of such evidence, the Fourteenth Circuit should have analyzed the

Haircut Policy under the assumption that no comparable restrictions are imposed exclusively on

female athletes, not that the lack of evidence “entitles [Respondents] to judgment”. R. at 4.

Even absent evidence of a counteracting female exclusive policy, the existence of

differing hair length restrictions is insufficient to establish the existence of unequal treatment.

The hairstyle provision of the Code imposes equivalent restrictions on male and female athletes

relating to a wide variety of prohibited styles of hair, and a difference in a single element of that

policy is not evidence of an unequal burden. See Barker, 549 F.2d at 401 (finding no gender

discrimination where a grooming code restricted male hair length); Knott, 527 F.2d at 1250

(holding that where both men and women were subject to certain requirements of dress, a hair

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length restriction did not constitute gender discrimination); Dodge, 488 F.2d 1333 (dismissing a

complaint that alleged that a hair style regulation, which did not permit long hair on men,

constituted sex discrimination). Respondents have failed to meet their burden of evidencing the

unequal treatment prong necessary to establish that a grooming regulation imposes differing

burdens on each gender. As such this Court should determine that the Haircut Policy does not

violate the Equal Protection Clause.

II. THIS COURT SHOULD ADOPT THE BASEBALL RULE AS A MATTER OF LAW FOR TULANIA

A. JUDICIAL PRECEDENT WEIGHS IN FAVOR OF ADOPTING THE BASEBALL RULE AND RESPONDENT DO NOT PRESENT ANY COMPELLING RATIONALE FOR BREAKING WITH THAT PRECEDENT

1. The Baseball Rule Operates Across a Majority of Jurisdictions with Only Minor Variations

The ubiquity of spectator injuries at baseball games has led to near-uniform adoption of

some form of a limited duty of care for stadium owners and operators known as the baseball rule.

Early holdings varied in minor ways, but importantly they did not waiver in removing the

liability of owners and operators for foul ball injuries sustained by spectators once certain criteria

were satisfied. The court in Akins v. Glens Falls City School District, 424 N.E.2d 531, 533 (N.Y.

1981), specifically mentioned two alternate approaches:

Some courts have held that an owner merely has a duty to screen such seats as are adequate to provide its spectators with an opportunity to sit in a protected area if they so desire. Other courts have stated that a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be applied for on an ordinary occasion by those desiring such protection. 

Id. (internal citations omitted). The Akins court went on to adopt a two-pronged approach:

stadium owners and operators must 1) provide a protective barrier for the most dangerous area of

the stadium, understood in game of baseball to be the area directly behind home plate, and 2)

provide protected seating for as many spectators as may reasonably be expected to request it on

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an ordinary occasion. Id. If an owner or operator meets those requirements, then they have met

the duty of care as a matter of law and are not responsible for any injury caused by a foul ball

leaving the field of play. Id.

The baseball rule is the most common approach to managing unavoidable foul ball

injuries. See Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 222 (Mich. Ct. App. 2001)

(“[C]ourts generally have adopted the limited duty doctrine”); Rountree v. Boise Baseball, LLC,

296 P.3d 373, 377 (Idaho 2013) (“The majority of jurisdictions to consider the issue have limited

this duty by adopting some variation of the Baseball Rule.”); Verneris v. Wang, 49 Conn. L.

Rptr. 522, 523 (Conn. Super. Ct. 2010) (“The majority of American jurisdictions have declined

to impose liability on a stadium for spectator injuries”). Even when courts do not explicitly adopt

the baseball rule, judges acknowledge the principle that stadium owners and operators only owe

a limited duty of care to fans. E.g. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W.

903, 903 (Minn. 1932) (“[T]here are very few cases where the courts have passed upon the

liability of proprietors of ball parks to spectators injured by the ordinary playing of the game of

baseball”). State legislatures have also acknowledged the ubiquity of the baseball rule across the

country, and have chosen to adopt the rule via statute. See, e.g., ARIZ. REV. STAT. ANN. § 12–

554 (1999); COLO. REV. STAT. ANN. § 13–21–120 (1994); N.J. STAT. ANN. § 2A:53A–43 (West

2006); 745 ILL. COMP. STAT. ANN. 38/10 (West 1992). 

The overwhelming amount of precedent on this issue should be dispositive in this case.

The Respondent’s injury resulted from a foul ball within a baseball facility after Respondent

chose to attend a baseball game. Respondent was familiar with the risks of the sport as a lifelong

fan and Petitioners met their limited duty by providing screened seating behind home plate,

which were open and available and which Respondent had the opportunity of enjoying via her

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general admission ticket. R. at 36. This state of facts is consistent with the principles that

underlie all variations of the baseball rule. Moreover, the Fourteenth Circuit’s stated motives for

declining to adopt the rule on these facts are thinly reasoned and not shared by any other

jurisdiction. While there may be legitimate debate as to the bounds of the baseball rule, the

Fourteenth Circuit is well beyond it.

2. The Arguments Relied on by Courts Who Decline to Adopt the Baseball Rule Do Not Apply in this Case

The few jurisdictions that do not use the baseball rule differ in their justifications for why

the rule is inappropriate. One court based its decision on a perceived lack of policy justifications

for the rule and on recent developments in tort law. See Rountree, 296 P.3d at 373. Even courts

that are sympathetic to this position are still willing to give action to the baseball rule while

claiming to reject it. E.g., South Shore Baseball LLC v. DeJesus, 11 N.E.3d 903, 909 (Ind. 2014)

(holding that a stadium owner acted with the requisite care to discharge any liability to a

spectator injured by a foul ball, noting the plaintiff’s admission that “there could be a chance that

the ball could come that way”). In New Mexico, a decision rejecting the baseball rule

acknowledged that establishing a limited duty for owners and operators of baseball stadiums was

judicially appropriate, deciding instead to establish a duty of ordinary care not to increase the

inherent risk of being struck by an object leaving the field of play. See Edward C. v. City of

Albuquerque, 241 P.3d 1086, 1088 (N.M. 2010).

Diverse facts have helped test the boundaries of the baseball rule over time, and while

this has led to some variation in application, courts have not used unique circumstances to reject

the baseball rule outright. Such examinations have included what persons actually constitute

spectators at a baseball game and what the territorial limit of the baseball rule’s efficacy is within

a stadium or park. E.g. Clark v. Goshen Sunday Morning Softball League, 493 N.Y.S.2d 262,

xxv

262 (N.Y. App. Div. 1985). A crucial fact is often the location of the spectator when struck. A

small number of courts have held that the baseball rule covers only the stands themselves.

Spectators in other areas away from the field, such as food concourses, may be owed a greater

duty of care than the traditional baseball rule confers. See Maisonave v. Newark Bears

Professional Baseball Club, Inc., 881 A.2d 700, 709 (N.J. 2005). But this approach is rare and

most courts have extended the baseball rule to spectators in areas outside of the stands. See, e.g.,

Alwin v. St. Paul Saints Baseball Club, 672 N.W.2d 570, 574 (Minn. Ct. App. 2003) (spectator

returning from the restroom could not see the batter, was not watching the game, and could not

recover); Clark, 493 N.Y.S.2d at 265 (injured plaintiff who was standing on the field before the

game was a spectator as a matter of law).

Respondent was undoubtedly a spectator by the most common formulations of the

baseball rule, and her lack of sightline to the batter does not foreclose application of the baseball

rule. Even under the stricter standard adopted in Maisonave, petitioners did nothing to increase

the risk that Respondent would be struck by a foul ball while away from her seat.

B. THE POPULARITY OF BASEBALL AS A SPECTATOR SPORT AND THE INEVITABILITY OF SPECTATOR INJURIES COMPELS THE ADOPTION OF THE “BASEBALL RULE.”

The Fourteenth Circuit acknowledged the District Court’s authority to adopt a limited

duty for business owners. R. at 28. However, the higher court declined to adopt this baseball rule

based on an Idaho state court’s requirement of compelling public policy reasons for adopting

such a duty. See Winn v. Frasher, 777 P.2d 722, 724 (Idaho 1989) (finding that property owners

owe only a limited duty of care to safety officers as opposed to the broader duty owed to the

general public). The court was further skeptical of the necessity of the baseball rule given the

rarity of spectator injuries at Petitioners’ facility. R. at 28. However, because of the nationwide

xxvi

pervasiveness of spectator injuries and the persuasive policy rationales espoused by jurisdictions

that have adopted the baseball rule, this Court should adopt the baseball rule.

1. Foul Ball Injuries to Spectators are an Inherent Risk to the Game of Baseball and Intra-State Occurrences Are Not Required to Formulate a Rule on First Impression

Baseball crowds are made up of a willing audience for a sport that includes a not

insignificant risk of injury to those in the stands. But while this assumption of risk is an

important element, the frequency and inevitability of these foul ball injuries is most critical to the

courts. Judges recognize that this inherent characteristic of the game necessitates special

treatment. The combination of the spectator knowledge with a significant rate of injury

unavoidably leads to limited liability for stadium owners and operators, even on first impression

when there is no intra-jurisdictional precedent.

Foreign objects regularly intrude upon spectator areas during baseball games. See

generally Javier Diaz, Beware of Flying Bats: An Examination of the Legal Implications of

Maple Bat Injuries in Major League Baseball, 22 Seton Hall J. Sports & Ent. L. 311, 311 (2012).

Injuries frequently result and are a “natural risk” of attending a game. Quinn v. Recreation Park

Ass’n, 46 P.2d 144, 146 (Cal. 1935). While it is difficult to quantify the number of spectator

injuries caused by foul balls at professional and amateur baseball games, one recent study of

Major League Baseball estimated 35.1 foul ball injuries that require medical care per million

spectators per year. See James E. Winslow & Adam O. Goldstein, Spectator Risks at Sporting

Events, Internet J. L., Healthcare & Ethics (2006),

http://print.ispub.com/api/0/ispub-article/4003). Major League Baseball attendance for 2015 was

estimated at 73.8 million people. Maury Brown, MLB Sees Nearly 73.8 Million In Attendance

For 2015, Seventh-Highest All-Time, Forbes (Oct. 6, 2015, 2:34 PM),

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http://www.forbes.com/sites/maurybrown/2015/10/06/mlb-sees-nearly-73-8-million-in-

attendance-for-2015-seventh-highest-all-time/. One recent study estimated nearly 2,600 foul ball

injuries during the season. See Andrew M. Milsten et al, Variables Influencing Medical Usage

Rates, Injury Patterns, and Levels of Care for Mass Gatherings, Prehospital and Disaster

Medicine, Dec. 2003, at 334. One major league ballpark was the site of 300 such injuries over

the course of just over four seasons of play with attendance of 10 million, falling just short of

that estimate. See Reed-Jennings v. Baseball Club of Seattle, L.P., 351 P.3d 887, 891 (Wash. Ct.

App. 2015). These figures do not include the enormous number of minor league and amateur

games, leading to the expectation that there are many more such injuries across the country each

year. The sheer volume of baseball that is played in this country is a unique situation that

requires a specifically tailored approach.

In grappling with resultant litigation, many courts have acknowledged the inevitability of

such injuries at all levels of the sport and the obviousness of such circumstances to spectators.

Reasonable people know that there is a “possibility that a ball could enter the stands and injure”

them. Id. at 894. This danger has been described as “open and obvious.” Maisonave, 881 A.2d at

705. Courts acknowledge that ordinary spectators at a baseball game understand that the batters

“cannot and do not control the direction of the ball.” Brisson, 240 N.W at 904. Such occurrences

are “commonly incident to the inherent nature of the game.” McNiel v. Forth Worth Baseball

Club, 268 S.W.2d 244, 246 (Ct App. Tex. 1954). These circumstances may even be welcomed as

part of the thrilling experience of attending a baseball game. See Maisonave, 881 A.2d at 706

(describing baseball fans as routinely cheering foul balls and often risking life and limb to obtain

them as a keepsake). By adopting the baseball rule, courts are appropriately limiting liability

within stadiums. This approach safeguards against concerns that a large number of once-willing

xxviii

but then-injured participants might in the aggregate seek recovery. Frequent litigation would

ultimately limit the opportunity for others to continue to enjoy the sport that those injured once

willingly participated in.

The Fourteenth Circuit completely sidestepped this pervasive acknowledgement of the

unique circumstances of baseball, where an increased risk of injury to spectators and the sport’s

popularity compel special treatment. Instead, they attempt to find a “compelling” reason to

establish a limited duty as a matter of first impression. R. at 28. This is an unsupported approach.

Courts of first impression are frequently persuaded by the holdings of other jurisdictions when

considering foul ball injury tort claims when there is no state case law on point. See Benejam,

635 N.W.2d at 221 (finding “overwhelming” support for the limited duty rule across other

jurisdictions). See also Teixiera v. New Britain Baseball Club, Inc., 41 Conn. L. Rptr. 777, 777

(Conn. Super. Ct. 2006) (reviewing and adopting the reasoning of other jurisdictions as to the

limited duty of owners and operators of baseball stadiums); Verneris, 49 Conn. L. Rptr. at 523

(examining on first impression whether other jurisdictions had extended the baseball rule to

cover the sport of hockey). None of these courts felt compelled to ask at the outset whether there

was a compelling reason to adopt a limited duty rule. Yet it is obvious that the courts all felt

there was a compelling reason to adopt the baseball rule, otherwise there would be little

justification for limiting the duty owed to spectators by baseball stadium owners and operators.

2. The Baseball Rule Allows Participation in a Popular, Albeit Risky Activity Without Altering the Nature of the Game or Resorting to Arbitrary Line-Drawing

Judges and other analysts have presented strong policy-based justifications for the

baseball rule. Searching for these rationales is common practice when defining the scope of a

duty of care. See Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994). One such justification is

baseball’s status as America’s pastime, and that legal norms should facilitate spectators’ viewing

xxix

experience. See generally Walter T. Champion, Jr., Fundamentals of Sports Law, §6.3 (2004). It

follows that without the baseball rule, baseball would be less accessible as it is with the rule in

place, due either to higher ticket prices or fewer facilities. The baseball rule’s economic impact

directly addresses the potentially “onerous burden[s] on owners and operators,” both large and

small. Maisonave, 881 A.2d at 709; See also Ross H. Freeman, The (Hot) Dog Days Of Summer:

Missouri's “Baseball Rule” Takes A Strike, 80 Mo. L. Rev. 559, 571 (2015) (noting that any

increased risk of litigation would necessarily lead to increased ticket prices).

Traditional negligence jurisprudence cannot cope with the public benefit courts rely on in

justifying the baseball rule. A finding of negligence requires satisfaction of four elements: an

existing duty of care, a breach of that duty, legal causation, and actual damages to the plaintiff.

See, e.g. Turner v. Mandalay Sports Entm’t, 180 P.3d 1172, 1175 (Nev. 2008). Applying the

general duty of care that is assigned to property owners to baseball facilities would require

owners and operators to take “precautions that are clearly unreasonable,” with the end result

mandating stadiums where all spectators must be shielded at all times from the sport that they

have come to enjoy. The inherent nature of the game these spectators had come to embrace

would be compromised. Id. When faced with this conflict, courts formulated the limited duty of

the baseball rule. The rule is not an eradication of the duty of care. Instead, the baseball rule

allows courts to define that duty with “greater specificity.” Benejam, 635 N.W.2d at 223. It

protects spectators from unreasonable, unexpected dangers while avoiding the “substantial

alteration of the game of baseball as a spectator sport.” Id. Without the baseball rule, a claim of

negligence by a baseball spectator would ultimately hinge on a jury’s evaluation of safety

features and procedures, which will naturally vary a great deal across baseball facilities all over

the country. See Akins, 424 N.E.2d at 533-4 (criticizing the jury-focused approach advocated by

xxx

the dissent as overly harsh on defendants who have taken reasonable precautions to protect

spectators in dangerous areas within a baseball stadium).2

Given the particularities of baseball and the game’s popularity, it is wholly appropriate

for the courts to craft a more specific duty of care owed by baseball stadium owners and

operators. The decision of courts to routinely employ the baseball rule reflects this rationale.

The Fourteenth Circuit’s decision stands in stark detachment from the judicial status quo. In

demanding a compelling policy, the Fourteenth Circuit dramatically broke from precedent

without offering a meaningful policy reason for doing so.

C. THE BASEBALL RULE IS CONSISTENT WITH MODERN DEVELOPMENTS IN TORT DOCTRINE

The history of unique treatment of liability for injuries to participants and spectators at

sporting contests is long and eventful. Justice Cardozo famously wrote:

[T]he spectator of the sporting event, no less than the participant, ‘accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of being thrust by his antagonist or a spectator at a ball game the chance of contact with the ball…the timorous may stay at home.

Murphy v. Steeplechase Amusement Co., 166 N.E. 173, 175 (N.Y. 1929) (finding an amusement

park is not liable for a customer’s injury if they see and understand the danger of a given

amusement). That case famously described the doctrine of assumption of the risk, which is one

historical source of the baseball rule. See Quinn, 46 P.2d 

at 145. Other jurisdictions, often because of differing state statutes, focused instead on

contributory negligence, describing some baseball spectators as inattentive but knowledgeable

fans in an inherently dangerous environment and barring their recovery. E.g., Cincinnati

Baseball Club, Co. v. Eno, 147 N.E. 86, 87(Ohio 1925). Both assumption of risk and

2 See also Wex S. Malone, Contributory Negligence and the Landowner Cases, 29 Minn. L. Rev. 61, 77 (1945) (“A stadium protected in all its areas would prove financially disastrous to management ... and would outrage many devotees of baseball who like to watch the game without obstruction.”). 

xxxi

contributory negligence are still considered by modern courts when using the baseball rule to

limit stadium liability. See Turner, 180 P.3d at 1176-78 (exploring Nevada statute on implied

assumption of risk).

The Fourteenth Circuit asks whether the widespread adoption of comparative negligence

might abrogate the need for the baseball rule. R. at 30. It is true that the emergence of

comparative fault doctrine has overridden much of the law related to contributory negligence and

the viability of assumption of risk as a defense is somewhat in flux as a result. See David Horton,

Rethinking Assumption of Risk and Sports Spectators, 51UCLA L. Rev. 339, 355-57 (2003). But

this evolution did not happen in a vacuum. As comparative fault became an important concept

within tort law, courts that had previously adopted the baseball rule based on assumption of the

risk or contributory negligence grounds re-examined the rule and found that it was still valid.

E.g. Akins, 424 N.E.2d. at 434. Even the Maisonave court, one of the only examples of an

outright rejection of the baseball rule, used comparative fault in a way resulted in the creation a

new limited duty that, like the baseball rule, restricts the specific duty owed to spectators by the

owners and operators of baseball stadiums. 881 A.2d at 709. That holding even included a

reciprocal element: that spectators have an affirmative duty not to increase the risk that they

might be struck. Id.

The continued recognition of a limited duty for stadium owners and operators, even when

evaluating that duty according to modern comparative fault doctrine, shows that the baseball rule

remains a necessary outlier, and one that does not spring directly from doctrines that may have

been left behind. Rather, it is an admission that baseball presents unique circumstances and that

courts have chosen to acknowledge those circumstances rather than artificially change the

relationship between the game and its spectators.

CONCLUSIONxxxii

For the foregoing reason, this court should overrule the Fourteenth Circuit’s holding and

affirm the judgment of the District Court, find that there was no violation of Respondent’s due

process or equal protection rights, and adopt the baseball rule as a matter of law for Tulania.

xxxiii