Foul or Tort? Texans QB Schaub Loses Part of Ear After Late Hit By Broncos

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?

The video shows Mays hitting Schaub hard after Schaub had thrown the ball. This appears to violate the “one-step” rule:

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.

30 thoughts on “Foul or Tort? Texans QB Schaub Loses Part of Ear After Late Hit By Broncos

  1. I think the local governments building stadiums are abusing tax money. A stadium is an intentionally profit-making venue, I do not think government should be running any profit-making enterprise whatsoever, even if it generates taxes. A privately built stadium could still be taxed.

    Particularly one that benefits a handful of elites (the players and owners) in such a lopsided manner, with millions of dollars in income each.

    I do not begrudge sports stars their income, but like bankers and movie stars and music stars, I think they should all be required to make it on their own without any more government help than the common person.

    If a community wants a stadium, they should be allowed to chip in for the investment, buying shares. I don’t mind if the government provides legal guidance and organizational help in getting something like that started, but that should be an arm’s length operation owned by the share holders that voluntarily chose to chip in.

    I am not a fan of government at any level going into business for profit, or doing something that primarily benefits the already wealthy.

  2. Modern Day Gladiatiors…… Assumption of Risk…….they choose to play the sport and for the most part paid well….. Not the lions dinner…..unless we are the lions…..

  3. @Mike: Then the drive for it is probably corrupt, or at least inappropriate transference; by which I mean the politicians are confusing sports success with governance success. As if a winning sports team makes their constituency “better off” for having a point of pride. (When in reality using the lost tax money on something as mundane as new projectors in school, road repair, or more patrol cops would truly make them better off.)

    I have seen many a politician sincerely (I think) point at their city sports team as one of their accomplishments and a reason their city is better than another. I cannot say I understand that, I am not a fan. I have never (even in middle school) understood taking pride in an accomplishment of others that I had absolutely nothing to do with. I liked being on teams and playing sports (and still do), but I don’t get the vicarious victory part, I just don’t feel it.

    I do watch the Olympics and highlight reels, not because I am rooting for a team, but because some individual performances, catches, shots, etc are just astounding; and that is fun to see, even if I do not care who wins or loses.

  4. “Frequency of occurrence is not a valid argument for making something legal.”

    Disagree when we’re talking about the context of what risk one assumes and what one consents to when participating in a sporting event. If something happens frequently in a particular sport, then that certainly factors into any analysis of whether someone, by voluntarily participating in a sport, consents and/or assumes the risk of that event happening to him or her. If it happens frequently enough, then it’s certainly foreseeable and weighs in favor of saying it’s a part of the game that one consents to by voluntarily participating. I wouldn’t say something happening frequently necessarily shields that action from liability, but it’s certainly a factor in the analysis.

  5. @Waldo: If something is against the rules of the game (or against the law in general) then I think you are wrong. Throwing a punch in football or ping pong is simply against the law, it is not part of the game, no matter how often it happens. Overlooked or forgiven crimes are still crimes.

    If football believes that being a blood sport is a necessary part of the game in order to attract fans, they should declare themselves as such (like boxing or UFC) and set up new rules as to what is permitted, and make players sign contracts that absolve other players from lawsuits.

  6. @ Tony: the hit in this video is both against the rules of the game (helmet to helmet) and against the law in general as assault and battery (unless you argue consent or assumption of the risk). In fact tons of fouls in many sports fall into this same category. Like I said before, hit by pitch in baseball, late slide tackle in soccer, charged into in basketball all involve actions against the rules of the game and hard, possibly injury causing, contact. Every one is a crime and a tort unless you argue consent or assumption of the risk. I agree with you that there has to be limits to what is permitted. Just because it happens on the field or during a game does not mean that it’s not a crime or tort. I’m not sure where or how to draw that line. But, I’m pretty clear that it’s got to be more than just an action that is a foul under that sport’s rules plus physical contact.

  7. @Waldo: I think it comes down to intent. Helmet contact can be accidental, a broken arm in a pile up can be accidental, and that is what I think is the assumption of risk. Purposely committing a foul to trying to hurt, injure, punish or intimidate somebody, in my view, is a crime of battery. I saw a vidoe of Barkley, after a play, purposely elbowing a player hard in the chest because they accidentally fouled him at the basket. To me that was intentional and a crime, and he should have been arrested for it on the court, and prosecuted. When Barkley commented on that video, he said he was just trying to teach the guy a lesson. I think maybe a month in prison would teach Barkley a lesson, too.

  8. Tony C, right, one is not entitled to teach lessons to folks by violence anyway. If in fact that were OK, I’d be a teacher any day! 😡

  9. 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.”
    It’s already there. Always has been, and always will be. You can’t do anything about it. And the women are as much to blame as the men.

Comments are closed.