Cubs Strike Out in Play to Move Foul Ball Suit to Arbitration

Two weeks before the first pitch of the season, the Chicago Cubs have already whiffed on an effort to force an injured fan into arbitration, in a ruling that could undermine a practice teams use to avoid litigation.

In a unanimous decision issued Tuesday, a state appeals court in Illinois upheld a trial court decision allowing a lawsuit by the fan to go forward. The court ruled that the arbitration provision — in small type on the back of the ticket, referring the holder to a web page with more information — was “so difficult to find, read or understand” that the fan couldn’t have known what she was agreeing to.

After a rash of fan injuries in recent years, Major League Baseball franchises have installed protective netting. That move has in turn given rise to a new batch of legal claims from injured fans who claim the effort is insufficient, challenging the century-old “baseball rule” that fans assume the risk of attending a game. Companies generally prefer arbitration since it’s secretive, they have a say in the selection of the judges, and the rulings are final, with only limited rights to appeal.

Representatives of the Cubs and Major League Baseball didn’t immediately respond to requests for comment on the ruling.

The fan, Laiah Zuniga, was at a Cubs-Mets game at Wrigley Field in August 2018 when she was struck in the face with a foul ball, suffering facial fractures, vision loss and broken teeth. After she regained consciousness she was taken from the stadium in an ambulance, according to a statement provided by Clifford Law Offices PC, which is representing her. She said she was injured because the Cubs had failed to extend protective netting far enough around the infield portion of the stadium.

“The main point the court is trying to say here is, before you can argue someone entered into a contract, they have to have full knowledge of what the terms are,” said Henry Simmons, managing partner at Clifford. “It can’t be ambiguous. There can’t be fine print that creates difficulty in understanding what you’ve entered into.”

Statistics on fan injuries from errant balls and bats in baseball stadiums are difficult to obtain, but a Bloomberg News analysis in 2014 put the number at an average of 1,750 a year. Teams began extending safety nets in 2015, after a spate of gruesome injuries.

The Cubs made the playoffs in the pandemic-shortened 2020 season but were swept in the Wild Card series by the Miami Marlins. For the coming season they’re off to a hopeful start in spring training, going 7-5 so far in Cactus League play.