By Mark Esposito, Guest Blogger

A disturbing report from the NFL released on Friday charges that the coaching staff of the New Orleans Saints tolerated and encouraged a bounty system designed to violently remove opposing players from the game. The bounties ranged from $1,000.00 for putting an opponent out of the game to $1,500.00 for a “cart off.” A “cart off” being injuring an opponent so severely that he would have to literally be physically helped to leave the field of play.

In 2009, the Saints were the league’s poster boy for “feel good football.” Following the devastation of Hurricane Katrina, the Saints were credited with boosting the spirits of New Orleans and providing the impetus to rebuild. Indeed, it may have been the only institution in the storm ravaged town actually functioning as intended. It’s Super Bowl win for the 2009 season after decades of frustration as the league’s laughing-stock, was seen as a vindication of the power of sport to unite a community and help it over come adversity. It’s diminutive quarterback, Drew Brees, was seen as a national hero for his laudable efforts to restore some civic pride to the devastated city. But behind all the glory was a dark secret that permeated the team and could topple its legacy.

The system was reportedly put in place by then defensive co-ordinator Gregg Williams and involved 22-27 players. The kitty was $50,000.00 and was doled out by the players for game-ending hits on opponents. Head Coach Sean Payton  and General Manager Mickey Loomis reportedly knew about the bounty system but did nothing. Payton has been trotted out by the league as a paragon of what an NFL coach is supposed to be. From his inclusion in the video for country music star Kenny Chesney’s 2010 mega-hit “The Boys of Fall,”  to his Coach of The Year Award, the NFL points to Payton as one of the “good guys.” Payton himself has welcomed the accolade and been all too willing to accept the praise for bring back the town, publishing his own book with the self-congratulatory title, Home Team: Coaching the Saints and New Orleans Back to Life.

The Saints defense was eager to accept the bounties in 2009. Opposing quarterbacks Kurt Warner and Jay Cutler took big hits from the Saints in the games leading to the playoffs, and Vikings star running back Adrian Peterson has publicly voiced his belief that the Saints went after him and Hall of Fame quarterback Brett Farve in the 2009 NFC Championship Game. In that game, the Saints committed three unnecessary roughness penalties for shots on Farve and made obvious efforts to re-injur Petersen’s already sprained ankle. Farve was carted off the field in the third quarter after a hit by the Saint players Bobby McCray and Remi Ayodele but managed to return after treatment. McCray was later fined after the league reviewed the tape. Now multiple reports are surfacing that the Saints imposed a special $10,000.00 bounty specifically to get Farve out of the game that serves as the entry way to the Super Bowl.

Violence in football is nothing new.The law has generally excused this type of mayhem on notions of the players’ informed consent about the game’s physical demands and the enforcement of rules designed to make the game as safe as possible both in terms of equipment and style of play. The common law usually expressed the rule this way:

“A man shall not recover a recompense for an injury received by his own consent, provided the act from which the injury is received be lawful: but where two fight by consent, and one is beaten, he may recover damages for the injury, because fighting is an unlawful act.” (Stout v. Wren, 8 N.C. 420, 420 (1 Hawks) (1821))

The rules of the game, of course, must tend to mitigate rather than encourage the risk of injury. “[I]f the rules and practices of the game are reasonable, consented to by all engaged, and are not likely to induce grievous bodily injury or death, then injuries . . . on the field of play are excused.”

The sport’s indifference to violence received legal scrutiny in 1905 when President Theodore Roosevelt, one of the greatest sportsmen of all-time, summoned representatives from Harvard, Yale, and Princeton and  threatened to ban the sport unless its brutality was removed. The next day college coaches embarked on changes which abolished the gruesome “flying wedge” play and “gang tacking.” Even with rules changes, violence in the sport escalated with bigger and faster players – sometimes chemically induced (See, Steve Courson’s testimony before Congress) — creating horrific collisions overlain with a culture of macho virility absent in most other sports excepting only hockey.

The law thus began to take cognizance of gratutitous violence in the sport for overly violent acts. A 1976 case, People v. Freer, 381 N.Y.S.2d 976 (Dist. Ct. 1976), laid out the law’s position on “overtly violent” acts outside of the rules of the game which could subject one to legal culpability. In that case, a tackler took down a ball carrier with a tackle augmented with a punch. In the ensuing pile-up the defensive player inflicted a second punch. The Court ruled the second punch was a criminal act:

“Initially it may be assumed that the very first punch thrown by the complainant in the course of the tackle was consented to by defendant. The act of tackling an opponent in the course of a football game may often involve ‘contact’ that could easily be interpreted to be a ‘punch’. Defendant’s response after the pileup to complainant’s initial act of ‘aggression’ cannot be mistaken. Clearly, defendant intended to punch complainant. This was not a consented to act.”

Now it seems conspiracy to injure has been injected into the risks of football outside of the rules with little objection from the Saints’ coaches or management. Opposing players are not so accepting. Viking punter Chris Kluwe voiced the concerns of many: “This is troubling to me as a human being,” he said. “Football is a violent game. Guys get hurt all the time. But you want to be out there with the comfort that other guys aren’t purposely out trying to injure you. At that point, you’re not safe.”

And those words may well be the ralling cry of NFL management who have had a recent change of heart about injuries in the game. Following the depression-induced suicide of NFL great Dave Duerson and a spate of reports about brain injuries leaving hall of famers as little more than drooling messes, the league has taken player safety seriously. New safety rules, huge fines for big hits, and league-funded studies to address concussion risks are a few of the steps implemented to make the violent game more safe and, not-so-coincidentally, palatable to those decision-makers around the kitchen tables of America where potential NFL football players are permitted to play the sport.

NFL Commissioner Roger Goodell was publicly apoplectic, “It is our responsibility to protect player safety and the integrity of the game, and this type of conduct will not be tolerated. We have made significant progress in changing the culture with respect to player safety, and we are not going to relent.” One can only infer from these comments that the league know about the culture of violence and disregard for player safety by some coaches and teams. In a sport premised on consent based on adherence to the  rules of place, this is a damning statement which could subject it to liability exposure based on its downright obstinacy to address the issue before now.

Given that liability exposure the Saints can expect huge fines and punitive measures to address the problems contained in the report. An organization as successful and profitable as the NFL cannot accept a conspiracy to injure in its midst. The damages from potential lawsuits could run into the hundreds of millions of dollars given the salaries of the players involved.  Roger Goodell, an attorney and expert on risk management, knows that all too well. Saints heads are likely to roll.

Sources: Fox Sports; Victoria Advocate; J. Cri. Law & Criminality

By Mark Esposito, Guest Blogger.