009: Had the Fever and Had it Bad

Stella Case No. 009, Originally Published: 9 October 2002

Anthony Ercolano, 44, is a fan of the Seattle Mariners baseball team. A big, big fan. The former Microsoft employee has a pair of season tickets to the exclusive “Diamond Club” section right behind home plate. They cost him $32,000.

Cripes… I can still hear him from here!

“He’s loud,” says the Mariners’ attorney, Bruce Johnson. “That’s the gist of it.” Very loud. And, apparently, very constant. He shouts at short players to “stand up.” He makes baby-crying sounds when batters argue with the umpire. On and on. And since he’s just five rows behind home plate they hear him — and so do the other fans nearby.

Mariners Executive Vice President Bob Aylward called Ercolano on the phone to ask him to tone it down or move farther from the action. Johnson says the Mariners “have full authority to protect nearby fans in the Diamond Club from the heavy, incessant volume of noise created by Mr. Ercolano” and that the team is “rightly concerned for the well-being and comfort of their fans, including those in the Diamond Club…. These fans do not come to the ballpark to be repeatedly and constantly assaulted by Mr. Ercolano’s noise.”

But since, Ercolano says, “I believe in being loud at a baseball game,” he would have none of these suggestions. Incensed at being hushed, even in private, he sued the team in King County Superior Court claiming that the baseball franchise is violating his freedom of speech and “possibly breaching his season-ticket contract.” His suit asks for a guarantee he will not be ejected from any game, that his season tickets will not be revoked and, of course, he wants an unspecified amount of monetary damages.

“Really, what he wants is to be free of harassment,” says Paul Meiklejohn, Ercolano’s attorney. “And he’d like an apology from the Mariners.” He says his client’s enjoyment of baseball is the “game and cheering and teaching his [daughters] about the game.” But perhaps even more, Ercolano “feels that he spent a lot of money for these tickets … and he didn’t expect to be belittled.”

Funny, but isn’t that pretty much what the Mariners’ are saying? The case gives a chilling new meaning to the classic lyrics:

Katie Casey was baseball mad.
Had the fever and had it bad;
Just to root for the home town crew,
Ev’ry sou Katie blew.
On a Saturday, her young beau
Called to see if she’d like to go,
To see a show but Miss Kate said,
No, I’ll tell you what you can do:

Take me out to the ball game,
Take me out with the crowd.
Buy me some peanuts and Cracker Jack,
I don’t care if I never get back,
Let me root, root, root for the home team,
If they don’t win it’s a shame.
For it’s one, two, three strikes, you’re out
At the old ball game.

Sources

  • “Fan Sues after Team Tells Him to Shut up,” Seattle Times, 28 August 2002

Case Status

I was unable to find any updates on this case, but I’ll take a wild guess and suppose that he couldn’t renew those tickets the next season, even if he wanted to.

Letters

Chad in Washington: “[The plaintiff] is paying TOP DOLLAR for his seats. And he obviously gets into the game. That is his right. To be told to be quiet IS an abuse of his rights. In New York, he’d be the norm. I don’t think he should get a monetary award, but I think every human being has the right to be heard at the top of their lungs, if they so desire (unless they are threatening harm, or being obscene, but that’s not the case here). If anything, the Mariners should be paying him to get the crowd into the game. If they are putting pressure on him to shut up, then I feel he has every right to take them to court.”

My 2020 Thoughts on the Case

“Your right to swing your arms ends just where the other man’s nose begins.” —An unnamed judge in a June 1919 Harvard Law Review article by legal philosopher Zechariah Chafee. It just seems to apply here.

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7 Comments on “009: Had the Fever and Had it Bad

  1. I would ask Chad in Washington to re-read the second paragraph. If Mr. Ercolano were ONLY being loud I could agree, but the description of his actions clearly indicates that he is abusive to the people around him. I believe that the court should find in favor of the Mariners. It doesn’t sound like he acted unreasonably.

    Reply
  2. This case has some points that would apply in the COVID world, such as “I have a right to not wear a mask” vs. “I have a right to be protected from others.”

    Aside from the many other things that could be said on that subject, I see another problem with regard to the boisterous fan. I really don’t like to listen to the obnoxious screaming and ranting of such fans. However, there is nothing that guarantees my right not to be offended since “offence” is subjective. The owners of the property do have the right to determine who may be on the property. They may make rules about the actions and behaviors of their guests and have the right to enforce them. I would think that complaints from others on the premises would be grounds for ejection from the grounds. In this case, the owner attempted reason with the fan before going to that extreme. That’s commendable.

    From the healthcare side, I can see how asking someone to tone it down would be necessary. This is strictly considering noise-induced hearing damage. Simply sitting in the stands for a few hours places all attendees at risk, similar to attending a rock concert. Add the loud, persistent yelling of a fan in near proximity, and the risk increases. Repeat the exposure day after day and the damage may be irreversible. The use of hearing protection can help, but then the fans could not hear the announcers or the marvelous sound the bat makes when cracking that ball over the fence.

    Reply
  3. I find it sad that he was claiming that they’re “violating his freedom of speech”. Yes, in the US we have freedom of speech but *ONLY* in public areas, which that stadium is definitely *not*. No one has freedom of speech in someone else’s space (e.g. does he think he could do the same thing in someone’s home while watching the game?). He complains that his rights are being violated. But what about the rights of the others in that section? Don’t they have a right to not have to hear his obnoxious noise? After all, they paid top-dollar for their seats as well.

    The team wants everyone to have a good/pleasant time at the game (within certain limits of course), not just a few people who seem to think that they should be able to do whatever they want because “I paid good money for those tickets”. I find it ironic that his lawyer says “what he wants is to be free of harassment” but that’s the exact same thing the others in that section want, and apparently so does the team. (smh) I think Randy’s 2020 Thoughts on the Case are spot-on.

    Reply
  4. The Mariners are not abusing his rights. The First Amendment protects free speech from interference by the Government, it does not inhibit private business from specifying whatever restrictions on speech it wants to. Just as the Second Amendment protects the right to bear arms from interference by the Government, a private business can refuse entry to armed citizens.

    Reply
  5. Great to be seeing these cases again. TSA is what led me to your main publication. Amusingly, it was the fake story chain email that led me to look up Stella Awards and find the real cases.

    The printed book has pride of place on my shelf, the kindle version is always on my devices and gets reread every so often. I look forward to seeing more of the stories go up, prompting us all to think a bit deeper while still making us laugh.

    They’re all going up, including some that didn’t make it into the book! -rc

    Reply
  6. “Your right to swing your arms ends just where the other man’s nose begins.” —An unnamed judge in a June 1919 Harvard Law Review article by legal philosopher Zechariah Chafee.

    Man, I am definitely saving that and using it with some of my non-mask wearing friends.

    Reply
  7. While it wouldn’t have been effective at the time, the ballpark could have started to write up a ‘Rules of Etiquette’ agreement into future season pass contracts, with provisions to cover such prolonged, voluble, abusive behavior, with appropriate remedies.

    And seriously, Ercolano is delusional if he thinks he’s teaching his daughters anything other than how *not* to behave.

    Reply

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