ALL YOURS, PROFESSORS

November 09, 1959

Some weeks ago on these pages we reported a discussion that took place in the Harvard Law School (SI, Oct. 26). The discussion, held under the supervision of Professor Lon Fuller, concerned itself with the ethics of various forms of subterfuge on the sports field, with particular emphasis on the question of whether a baseball catcher who "pulls" a ball into the strike zone to fool an umpire is acting with more or less ethical sanction than a football player who feigns injury to fool a referee. The ensuing argument promptly leaped from our pages to the halls of the University of Minnesota Law School, where Professor Yale Kamisar and his students took instant issue with the conclusions reached by Professor Fuller and his students. Professor Kamisar wrote us a letter about it. We sent the letter to Professor Fuller, who replied with another letter. Since both of these learned gentlemen are obviously well qualified to defend their views, we ourselves feel it the better part of wisdom to retire and turn the floor over to them.

PROFESSOR KAMISAR: Professor Fuller likens the catcher's action in "pulling" balls into the strike zone and exclaiming, "Look where my glove is!" to a lawyer's advocacy. Would not improper legal argument be a more apt analogy? Is it within the bounds of propriety for a lawyer to strive to mislead or deceive the court as to the facts of the case on which he seeks a ruling?

True, theoretically the umpire remains free to make his own choice, but don't the catcher's tactics make it much more difficult for the umpire to make an objective choice? The whole point of the catcher's tactics is to pressure the umpire into calling the next close pitch in his favor, is it not? Furthermore, aren't the catcher's tactics likely (if not calculated) to incite the many thousands of fans in the stadium? To encourage them—as if they need much—to heap verbal abuse on the umpire? Isn't the catcher, then, acting very much like, say, the prosecutor who appeals to the prejudice of the courtroom audience and/or the crowds waiting outside, with the full realization (if not the hope) that they may coerce the judge and jury?

Fuller argues that the catcher's tactics and the football player's feigned injury should be viewed from the position, "If one can do it, all can do it." "Should there be an injury following every play in football," he continues, "the game would soon degenerate into an uninteresting farce." This sounds very much like the familiar argument from the "wedge principle." England's Glanville Williams, another eminent professor of jurisprudence, has said of such an argument as this:

"It seems a sufficient reply to say that this type of reasoning could be used to condemn any act whatever, because there is no human conduct from which evil cannot be imagined to follow if it is persisted in when some of the circumstances are changed. All moral questions involve the drawing of a line, but the 'wedge principle' would make it impossible to draw a line, because the line would have to be pushed farther and farther back until all action became vetoed."

In any event, I fail to see how the "wedge principle" aids Fuller. The practice of feigning injuries to stop the clock to conserve time for a touchdown drive has some very substantial limitations by definition. There is no conceivable point in resorting to such tactics when there are 20 minutes left to play, or 10, or probably even five. And, of course, there is no point in the leading team resorting to such tactics. On the other hand, the practice of trying to sway the umpire's judgment on a pitch has no comparable "built-in" limitations. There is as much to be gained from these tactics in the first inning as in the eighth or ninth. Furthermore, both teams can and do engage in the practice—and at the same time. For example, with two out and the count three and two, the batter may leap away from the plate to persuade the umpire the pitch was too tight and/or throw his bat away and trot down to first base, to persuade the umpire the pitch was ball four. At the same time not only may the catcher be "pulling" the ball into the strike zone, but the pitcher may be striding off the mound toward the dugout in an effort to persuade the umpire the pitch was strike three and the side is out. And taking the "if one can do it, all can do it" approach on other plays, the first baseman will receive the shortstop's throw and whip the ball around the infield as if the throw were in time, the outfielders will be trapping line drives, but pretending to catch them, the infielders will be tagging sliding base runners without the ball, ad infinitum.

A baseball game is supposed to be an athletic contest, not a debate tournament or a Broadway drama. The ballplayer is there to play ball, not to make like Clarence Darrow or Spencer Tracy. As Professor Fuller himself has reminded us in his provocative book, The Law in Quest of Itself, "the commonest stupidity consists in forgetting what one is trying to do."

PROFESSOR FULLER: I was accurately reported in SPORTS ILLUSTRATED as disapproving feigned injuries and as approving the practice by which a baseball catcher "funnels" the ball into the strike zone as he catches it. Professor Kamisar would squarely reverse these moral judgments. In doing so, my learned colleague is, I submit, profoundly in error.

There are sound reasons (having nothing to do with "deceiving" the umpire) why a catcher should stand close to the batter, "ride with the pitch" and draw the ball toward the middle of the strike zone (see George "Specs" Torporcer, Baseball—From Back Yard to Bid League, 1954, pages 55-57). That being so, I see no reason why he should not catch the ball as "persuasively" as he can from the standpoint of getting called strikes. Nor should the game be taken with such solemnity that a little enlivening touch of advocacy may not be tolerated. After all, we should remember the remark of an oldtime umpire—a remark pregnant with meaning for legal and moral philosophy—"some is balls and some is strikes, and some ain't nothin' till I calls 'em." As an interested party in these decisions, the catcher ought to be accorded some share in shaping those that fall in the third category.

Professor Kamisar's argument about the "built-in" limitation on the use of feigned injuries simply confirms my condemnation of that practice. Until the game is on ice, it would-be to the advantage of any team with the ball to feign an injury after every play to gain more time to set up the next play. This is not done, because if it were, no one would want to watch or play the game. There is, then, a kind of tacit and very vague agreement not to push feigned injuries too far.

The result of this is to put a premium on violating this agreement or on pushing its boundaries to the outer limit. The so-called "built-in" limitation on faking is exactly the same as the "built-in" limitation on slugging—"Don't slug too much, or we'll step up our own slugging." There is the difference, however, that the umpire who wants to avoid serious injuries can stop slugging, but can't stop apparent faking, precisely because to do so would be to run the risk of causing serious injury.

It is one thing to take a slight advantage of an umpire's slowness of visual response. It is another thing to take advantage of his desire to see that no one gets killed.

TWO PHOTOS

HOLE YARDS PAR R1 R2 R3 R4
OUT
HOLE YARDS PAR R1 R2 R3 R4
IN
Eagle (-2)
Birdie (-1)
Bogey (+1)
Double Bogey (+2)