Tuesday, August 28, 2012

Save the Yankees

The New York Yankees are not immune to losses.  Like every other team in Major League Baseball, they win some and they lose some.  Even rabid Yankee fans can accept that 162-0 during a regular season is unattainable (although preferred).  Fans will be surprised to learn that the NY Yankee organization, however, has managed to put a hard cap on their total amount of potential losses.  They did not accomplish this by thumbing their nose at the luxury tax on player salaries.  They did it in cooperation with the federal government and at the expense of the fans.

In July, Yankee Stadium became the first sports facility to earn the coveted federal "Safety Act" designation. That means the facility has passed a battery of tests and won approval from the Department of Homeland Security, so the Yankees have been granted a wide-ranging immunity from future lawsuits that might stem from terrorist attacks (and I don’t mean stolen bases).  Fans may lose a chance to see future games but the Yankees financial empire will remain intact.

In English, this designation means that fans in attendance that may lose their lives at the hands of a terrorist act will have difficulty suing the club for damages.  Massive tort reform has now been reduced to the disclaimer on the back of your game day ticket stub.  Beware of batted balls and dirty bombs.  All rights reserved.  Void when prohibited.

New ticket stub disclaimer draft language: We are not responsible for injuries sustained from batted balls, flying objects from the field of play, or any other act that we determine can be classified as a terrorist act, including but not limited to players entering the stands to kick your ass, Joe Girardi insulting your family during a post-game tirade, or Alex Rodriguez dating your teenage daughter.

The Safety (SAFETY = Support Anti-Terrorism by Fostering Effective Technologies) Act was part of the Homeland Security creation bill passed after 9/11.  The goal was admirable.  It was intended to provide some financial protection for companies that were inventing new safety technologies.  For example, say your company invented a way to identify an explosive being brought through a train station with 99.9% effectiveness.  Unfortunately, the 0.1% got through and a terrorist act was committed.  If this company had applied and received acceptance under the Safety Act, they could not then be sued out of existence (unless the survivors can prove fraud or intentional malice, a fairly high bar).  The Safety Act theoretically gave cost certainty to innovative companies and an incentive to experiment.

The Act itself was not originally designed for sports venues, but that doesn’t mean that forward-thinking franchises like the New York Yankees can’t adapt its language and purpose for its own protection.  It’s instant tort reform since the definition of a “terrorist act” is left vague in the law. 

Since Yankee Stadium is now on the list of Safety Act accredited businesses, we can be assured of two things.  First, the venue takes security very seriously, and you are probably safer because of the designation.  The application screening process is very rigorous, like a strip search at LaGuardia rigorous.  (Disclaimer – this designation will not protect any fan of an opposing team from having a beer poured on his head and being tossed headlong off the upper deck.)  Second, it means that the prices you pay for beer and hot dogs will be reduced as the team passes the savings on to you.


The intention of the law was to protect the creators of new technologies.  This protection would encourage the growth of innovations that would help make us safer.  The law is beginning to become a catch all for any company looking to limit liability with the Safety Act official “get out of jail free” card.

Liability claims from terrorist acts can be expensive.  A report by the European Organisation for Security states that $40 billion was paid out by insurers after the 9/11 attacks.  That is the equivalent of 2 seasons of the Yankees player payroll, so you can see why the team needed this protection.  If God forbid there was an attack at the stadium and fans sued the team, they would no longer have the cash to sign Stephen Strasburg in 5 years or Josh Hamilton this off season.  Devastating. 

The Safety Act sounds like a good idea, and innovative companies need some protection in order to grow.  The Yankees might be uncovering what happens when good laws are stretched to their limits.  I’m glad the stadium is considered a safe place, excluding the foul language you are bound to hear.  I am not glad that fans have little or no recourse legally if the club is negligent in its protection.

From the DHS website section on the Safety Act:

"New York Yankees d/b/a The New York Yankees Baseball Club provides The New York Yankees Security Program.  The Technology is a comprehensive integrated security system, which is comprised of physical and electronic security measures, tools and procedures designed to detect, deter, prevent, respond to and mitigate Acts of Terrorism at Yankee Stadium during Game Day, Non-Game Day (In-Season), Non-Season and Special Events."

Unfortunately, the team can still lose in the playoffs with an aging line up of hitters and an injury-prone pitching staff.  There is no federal protection for that.

Boston fans, that’s the only good news I have for you.


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