Baseball and the law: Questioning MLB’s ‘standard of review’

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For a brief moment in October, the uniform of Bay Street changed from Harry Rosen suits to Jose Bautista jerseys. Boardrooms were lit up not with late-night drafting sessions but with associates clustered around flat-screen televisions. Playoff baseball was back in Toronto.

And then, Royals fan Caleb Humphreys and his magnificent neck-beard turned Hogtown to mudville when he caught Mike Moustakas's second-inning Game Six solo shot off of David Price. It was a blow from which the mighty Blue Jays could not recover.

Of course, if you're a good Canadian, you are not happy about this home run, not just because it was integral to the Royals' victory, but because you probably don't think it was really a home run – replay review shows there was a pretty good chance that Humphreys leaned over the fence to catch the ball. Moose's bomb should have been called a ground rule double.

The play wasn't changed, but not because it wasn't likely that Humphreys leaned over. It was because of something lawyers call the "standard of review," or the standard by which a higher court reviews a lower body's decision. In baseball, it takes "clear and convincing" evidence to overturn a call, which is defined as evidence sufficient for the reviewer to conclude that the call on the field was incorrect.

Whatever your thoughts on the play, it's impossible to say that replay shows definitively that the fan interfered with the ball. It's merely probable, and probable isn't enough to overturn a call. The tough part about this standard is that it means that replay officials should uphold calls that are probably incorrect. Had the call on the field been a ground rule double, it would certainly have been reviewed and upheld as well.

So, says the disgruntled Blue Jays fan, does this standard of review make sense? Should the call on the field be given deference or should it be reviewed "de novo" (ie. As if the replay official were reviewing the call for the first time).

This is a hard question. In law, it's broadly true that standards of review give deference to the decision maker's expertise.

For example, appellate courts give great deference to the factual findings of lower courts that engage in the arduous process of uncovering facts during the course of a trial. However, they give much less deference to the legal conclusions of lower courts; appellate courts, the theory goes, are specialists in the law and much less susceptible to error.

Similarly, administrative tribunals – think of the Labour Relations Board – are given great deference by courts when reviewing matters within their area of expertise, and much less deference when they are forced to make decisions outside of that area.

Ideally, this principle should minimize errors. If a lower court is more likely to get the facts right, the higher court should avoid imposing its own, less informed judgment on that process, even if it means that some factual errors will go unremedied.

Even before instant replay, baseball operated by this principle. When a batter checks his swing, the opposing team – or even the plate umpire – may appeal down the baseline to the first base umpire. Why? Because that umpire is better situated to determine whether the batter swung past 90 degrees. It doesn't mean that the first base umpire is always right, but the standard defers to the first base umpire's judgment because he is more likely to be right.

With replay, the question is harder: aren't the dozens of cameras more likely to get the call right than the umpire on the field? Should slow-motion cameras with high-definition zoom really be deferring to a four portly men watching in real time from a hundred feet away? If the goal of replay is minimizing error, shouldn't plays like the Moustakas home run be reviewed de novo?

There are a couple of possible answers. One is that de novo review would slow the game to a crawl. In baseball, this is a compelling answer. Umpire crew chiefs have the right, at any time after the seventh inning, to request a replay review of any reviewable call; a lower standard would mean many more reviews and much slower games.

Another may be the appearance of bias. A quick decision by an umpire on the field has the virtue of appearing more honest – or at least less conspiratorial – than the decision of a faceless bureaucrat in Major League Baseball's New York offices with a monitor.

A third answer may be a touch more romantic. Baseball is a game played between people and officiated by people and subject to human error. Game Six at Kauffman Stadium is the same as Saturday afternoon in the sandlot, only the standard of play is better. Given that, replay should only be used to correct egregious errors, not tiny human ones. Those are a fact of baseball (and life).

I don't find any of these answers to be as definitive as a Jose Bautista bat flip but, like most I've surveyed about this, I think the higher standard is appropriate – it's just a shame it didn't work out in our favour. But, hey, there's always next year, right Leafs fans?

Adrian Myers is a lawyer at Torkin Manes LLP