THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Lawsuit is testing bat-safety center

By Bob Hohler
Globe Staff / May 20, 2010

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The blueprint seemed foolproof. With free money — $200,000 grants each from Major League Baseball and Rawlings — the University of Massachusetts-Lowell would buy a bat-testing machine and create a research facility to help ensure the integrity and safety of the national pastime.

The UMass-Lowell Baseball Research Center opened in 1998 and struck profitable deals to certify every model of bat used in the major leagues and NCAA competition. As a gesture of goodwill, the center gave free advice to the National Federation of State High School Associations and youth baseball organizations, gaining national acclaim for addressing the dangers of balls rocketing off metal bats at dangerous speeds.

Juiced balls, corked bats, other threats to baseball’s historic standards: If scientific testing was needed, the Lowell center responded.

Then came a legal nightmare. Accused of violating its license to operate the testing machine, the baseball center became entangled in a seven-year court fight that spanned two jury trials and ended in January with the taxpayer-supported university taking a $4.4 million hit: a $3.1 million court judgment, plus $1.3 million in interest. The case also cost the university $1.7 million in legal fees.

Now the testing center is in crisis, its future in jeopardy.

The center is “at risk of closure if an effective plan for financial sustainability is not developed,’’ UMass-Lowell chancellor Martin T. Meehan recently wrote to the NCAA, seeking financial assistance.

The university paid the exorbitant legal judgment by borrowing money against the school’s research grant reserves, a UMass official said. The loan is scheduled to be repaid with funds generated by the center.

The question is, will the center survive?

The stakes are high. While the major leagues and NCAA could fund another testing center, shuttering the Lowell facility would eliminate jobs, student research opportunities, and a vital resource for more than 1.5 million young players a year who benefit from bat safety information the center provides at no cost to high school and youth baseball.

Elliot Hopkins, the baseball rules editor for the National Federation of State High School Associations, said the organization cannot afford to pay for the safety information it receives from the Lowell facility.

“Losing the center would literally cripple high school baseball nationally,’’ Hopkins said. “We couldn’t replace it.’’

Meehan has appointed a committee to recommend ways to save the center. The facility generates about $600,000 a year in revenues, with the NCAA paying about $480,000 and Major League Baseball contributing most of the balance.

Meehan’s first step was to ask the NCAA to pay an additional fee for each bat model the center certifies. The center has tested hundreds of models through the years.

“The per-bat financial contribution would help ensure that the [center] can continue to provide a valuable service to the NCAA for years to come,’’ Meehan’s letter stated.

The NCAA, while expressing appreciation for the center’s work, indicated in a statement to the Globe that it was not in a more giving mood.

The Lowell center “has helped in the development and growth of the NCAA baseball bat certification program,’’ the statement read. “In regard to its request for additional monetary assistance, the [center] is an independent contractor and solely responsible for its finances. For its part, the NCAA did renegotiate its contract late last year for an increase in certain testing fees in the hope of enabling the [center] to continue its work and remain financially stable.’’

UMass-Lowell spokeswoman Patti McCafferty said last year’s increase was not related to the financial burden created by the legal case.

“We’re going to continue to work with the NCAA on this issue because it’s important that the center continues the good work it is doing on behalf of baseball players across the country,’’ she said.

‘Very big black eye’
No one is more pained by the center’s predicament than its founding director, James Sherwood, who has been at the forefront of regulating bat performance since the NCAA began cracking down on non-wood bats in the 1990s. A mechanical engineering professor, Sherwood was a key defendant in the legal case, arguing that his alleged breach of the license generated no more than $25,000 for the university.

The machine’s owner, Baum Research and Development Co., and inventor, Charles Baum, of Traverse City, Mich., alleged otherwise, claiming millions of dollars in damages.

Two juries in a federal court in Michigan agreed with Baum. A judge set aside the first jury’s verdict against UMass-Lowell ($2.5 million, plus interest) in 2005 as excessive, but a second jury heard additional evidence and hit the Lowell center even harder. The university’s appeal for a third trial was denied.

Sherwood was flabbergasted. He said the case stemmed from a once-productive working relationship with Baum gone bad.

“This is a blemish on our record, a very big black eye,’’ Sherwood said. “But we don’t deserve it. I really believe we were victimized.’’

Baum, who also manufactures composite bats and has sued both the NCAA and bat maker Hillerich & Bradsby, sold the testing machine to UMass-Lowell on the condition that it be used only to certify bats for the NCAA and other baseball organizations, not to perform commercial testing for his competitors. He alleged Sherwood violated the agreement by performing tests for numerous bat makers.

Baum’s lawyer, Andrew Kochanowski, blamed the costly litigation on Sherwood’s refusal to admit the extent of his licensing breach.

“The whole thing could have been avoided 10 years ago when they were informed they were using the machine improperly,’’ Kochanowski said. “When they decided to keep using it improperly, everything spiraled downhill.’’

Sherwood said he felt deceived by Baum and betrayed by the legal process.

“In all honesty, I never would have continued using that machine if I didn’t feel we were within all our rights to use it,’’ he said.

Lawyers hit it big
With the sides unable to settle their differences, the legal struggle turned into a bonanza for the lawyers. Baum’s legal team rang up more than $750,000 in bills, while UMass-Lowell’s lawyers charged the school $1.7 million.

Officials at UMass-Lowell said the school made numerous attempts to settle but were unwilling to meet Baum’s multimillion-dollar request. Instead, the university’s lawyers waged a full-court defense, including an unsuccessful attempt to persuade a federal appeals panel to dismiss the case.

In the end, UMass-Lowell’s exhaustive legal maneuvering inspired ridicule from Baum’s camp. After the second jury heard two weeks of proceedings and needed only four hours to reach a verdict, Baum stated in a court motion, “This litigation has been dragged out by UMass regardless of cost, using the money of the state of Massachusetts to employ three different law firms to raise frivolous issues.’’

The university’s lawyers described their work in court filings as a legitimate attempt to prevent “a miscarriage of justice.’’

“If Mr. Baum cared so much about the state of Massachusetts, he would have settled the case eight years ago instead of dragging the university through two costly federal trials in Michigan,’’ McCafferty said.

She said the university should not be accused of spending exclusively state money on the legal fees because state appropriations total only about 24 percent of UMass-Lowell’s budget.

Sherwood, meanwhile, remains hopeful about the center’s future. With his student assistants and a new testing machine, he continues certifying bats, ensuring the quality of major league baseballs, and preparing to enforce a new set of bat performance standards the NCAA plans to enact next year.

“We’re doing a lot for the welfare of the players in the game,’’ he said. “It’s really a labor of love.’’

He has participated in seminars from France to Australia, will travel to Vienna in July, and is scheduled to host a prestigious international conference at the center in 2012.

Until then, his work will include a special challenge: trying to save the center and pay down the $4.4 million bill.

“Closing the center is not going to change the outcome of the case,’’ Sherwood said. “We need to find a way to grow and move past this.’’

Bob Hohler can be reached at hohler@globe.com.

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