Yesterday, I watched with millions of fans for some great games in the NFL even with the questionable ref calls. I was not able to watch the Bears win unfortunately but I was able to bask in the glory from afar. The Patriots/Ravens games was exceedingly rough with both teams doing everything short of beating each other with folding chairs. However, the shocker came in the Texans/Broncos game where Houston quarterback Matt Schaub lost a bit of his ear to a late hit from Broncos defender Joe Mays. The video below raises a long-standing question of what constitutes a foul and what constitutes a tort in professional football.
The hit could be viewed as “roughing the passer” or a “helmet to helmet” violation, though Mays seems to be moving pretty fast at the time the ball is thrown (making a stop difficult). Under the rules, he is responsible for keeping track of whether the ball has been thrown — the NFL version of “burden.”
We discuss this controversy in torts in the context of the case of Hackbart v. The Cincinnati Bengals involving a game between the Denver Broncos and the Cincinnati Bengals in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was injured by a blow by Bengals’ offensive back, Charles “Booby” Clark. The trial court ruled for the defendants on the basis that the plaintiff “had to recognize that he accepted the risk that he would be injured by such an act.” However, the Tenth Circuit ruled that the hit fell outside of the NFL rules and thus Hackbart did not consent to such a battery. Hackbart v. Cincinnati Bengals, 435 F. Supp. 352, 353-54 (D. Colo. 1977), rev’d 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931 (1979). The reason was that the hit violated the rules of the game. However, there was no discussion of whether the rules of the NFL differed from the practices or industry custom. On the issue of the scienter, the court ruled it was clearly reckless: “The defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.”
On the questions of assumption of the risk or consent, the question is whether the court in Hackbart should have looked more closely on the actual practices in football as opposed to simply the rules.
Some judges have held a strict line that you cannot do indirectly through sports what you cannot do directly on the street. For example, in Regina v. Ciccarelli, Minnesota North Stars’ Dino Ciccarelli hit Toronto Maple Leafs player Luke Richardson with his stick during a game in 1988. Ciccarelli was sentenced to one day in jail for the assault and received a $1,000 fine. Judge Sidney Harris declared “it is time now that a message go out from the courts that violence in a hockey game or any other circumstances is not acceptable in our society … [for it] spills over from the arena into the streets.”
In this latest case, some questioned whether the late hit was not intentional. Indeed, the Patriots/Ravens game saw the same allegations. If it were intentional, should be be considered a tort?
1-Step Rule. Pass rushers are responsible for being aware of the position of the ball in passing situations. If a pass rusher clearly should have known that the ball had already left the passer’s hand before contact was made, unnecessary roughness will be called. The Referee will use the release of the ball from the passer’s hand as his guideline that the passer is now fully protected. Once a pass has been released by a passer, a rushing defender may make direct contact with the passer only up through the rusher’s first step after such release (prior to second step hitting the ground); thereafter the rusher must be making an attempt to avoid contact and must not continue to “drive through” or otherwise forcibly contact the passer. Incidental or inadvertent contact by a player who is easing up or being blocked into the passer will not be considered significant.
Drawing the line between rough play and a tort or crime is extremely difficult. Clearly Mays could not do any of the acts on the street that he does on the field with the consent of the other players. Yet, if you believe the hit was intentional or reckless, should he be held accountable outside of the NFL? If so, dozens of players each year could face such liability. If not, it is hard to see how some cases like Hackbart go to judgment while others remain on the field. The deciding factor appears to be the seriousness of the injury. It appears from some of these case that players may have team-based insurance in such cases, though I am not sure if that is an industry-wide custom.
I tend to view such incidents as part of the game, even if they violate the rules absent some truly egregious act of violence.
What do you think?
By the way, as a father of four who loves professional football, I was really quite annoyed by the conduct of players, particularly at the Patriots/Ravens game. My kids were fortunately asleep during the late night game, but it sends a lousy message to young fans about good sportsmanship and civility.