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. Mike:

    It is certainly a bread and circus type of issue. The Seattle City Council voted yesterday to allow the process for yet another sports stadium in the Sodo area, presumably with the intention of bringing back the Sonics. The amount of money local gov’t there burns in corporate welfare on sports stadiums is embarassing. One of the other stadiums, the voters rejected the stadium yet the politicians rammed it through anyway.

    Though I too am guilty in the sense however Baseball is my sport of interest. I don’t keep track of stats or teams but having played it for several years in my youth I enjoy on rare occasion watching the game live and in person. I could do without all the greed and cost though, just for the sport of it.

    1. Darren and Tony,

      The stadium building by local/state governments is a scam. There have been numerous studies that show the economic cost far outweighs the economic and the goodwill benefit. Given the lucrative income streams of sports teams today, they should build their own “offices”. This has also been true on the grander scale of the Olympics, though in that case the object is to give the host worldwide cache’.

      My favorite sport has always been baseball, in fact this summer I started to play softball again after almost 25 years, though at 67 my skills have eroded. 🙂
      I’ve been cynical about baseball though since 1957, when my beloved Dodgers ripped the heart out of Brooklyn, by moving to LA over a sports stadium. Darren, you understand because the Sonics left your beautiful City, I loved it when I last visited, for Oklahoma City. Now like a prisoner of the Stockholm Syndrome some want to lure the NBA back, weird.

  2. Football is a violent sport played by huge, though quick men, of amazing strength. Their culture is a super macho one, as are the metaphors used in describing the game. It has become incredibly lucrative for all concerned, especially the billionaire owners, who mainly exhibit a sense of entitlement that would make Romney and Trump blush with discomfort.

    We now know that many football players find themselves disabled in later life and actuarilly players have shorter life expectancies. Yet it remains the American equivalent of “bread and circuses” and I am as guilty as others in my fascination with it. However, as a Jets fan I am perhaps more jaded about it. No tort in the absence of malicious intent to injure, in tandem with assumption of risk.

  3. @Darren: I am not a lawyer, but I am pretty sure that without an explicit agreement (like in boxing or UFC) you do not automatically waive your rights to the courts. If your idea were taken to an extreme, contracting to play ping pong would mean you have no recourse if your opponent purposely threw his paddle at you and blinded you.

    I doubt that voluntarily playing the game means much besides accepting the risk of normal accidents and injuries. An explicit intent to do harm is not within the rules of the game, the fact that there are rules against it proves that.

  4. Woosty, Thanks for the Dick Cavett clip and there is Janet Joplin! I loved his talk shows. Dave Meggyesy’s comments are still valid.

  5. A couple of issues.

    I wonder if it could be argued the players in the game waive their rights to the ordinary legal process since they accept the decision of the referees and the NFL officials when they engage in the game voluntarily? That is, in the same sense that many contractually agree to binding arbitration instead of litigation clauses in contract law.

    Another issue. In some states, what happens during the ordinary course of an organized sporting event does not constitute assault. Washington State had a law such as this at one time, but I could not locate the statute given the time i have presently.

  6. @Waldo: Murders and bank robberies happen all the time too, we still outlaw them. Frequency of occurrence is not a valid argument for making something legal.

    To your point, however, there is something to be said for intent. If there is an intent to harm that results in harm, then I think it should be actionable in court. A personal foul without any intent to harm is within the game.

  7. “If it is not within the rules, there is no consent.”

    I disagree. Conduct like that seen in the video is clearly anticipated in football because there’s rules for what you can do and what the penalty is if you go beyond the rules. Just because it’s a penalty, does not mean that there’s no consent. That sort of hit is not uncommon in football. It happens all the time. Therefore, it’s foreseeable that you could be on the receiving end of such a hit you play football, and if you’re not willing to take that risk then you shouldn’t play football.

    If you went by the rule you propose, every time a batter is hit by a pitch, it’s a tort. Every time a soccer player is late slide tackled, it’s a tort. Every time a basketball player takes a charge or blocks, it’s a tort.

  8. “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.”

    Definitely not a late hit. It was, however, a personal foul for the helmet to helmet contact. No way stuff like that should be the subject of a tort claim. Personal fouls must happen thousands of times every year in football.

  9. Regarding this play, it was not a violation of the “one step rule.” In that regard, it wasn’t a late hit. It was flagged as a helmet-to-helmet hit against the quarterback. In that regard, it WAS a violation of the rules.

    As for whether this should be a tort, I tend to think no. I understand that the legal argument can be made that there is no consent for any action that violates the rules – but by that standard, pass interference, defensive illegal contact, and offensive holding all become – what – battery? Since a per-se rule would produce the ridiculous result of every pass-interference being an actionable battery claim, the obvious more desirable stabndard is that of simple reasonableness.

    For particularly egregious and apparently intentional/malicious violent hits in violation of the rules, perhaps a player could make a case. Colt McCoy v. James Harrison would come to mind. But in the case of a bang-bang play like this, is there even negligence? If an average of ~15 penalties are assessed per game, is there no assumption of the risk? The rules of football (the “game of inches”) ought to be, and are, less forgiving than the standards that govern tort law.

  10. I saw the hit and watched the replays. It was a moment late, and was a hard hit. The hit was clean in that it did not appear to be intentional spearing, but his helmet came off. Helmets fit very tight around the ears, and if you watch players remove helmets on the sidelines, they pull the sides out so the earpads will clear their ears. I doubt anyone would advocate suing the helmet manufacturer for making the things fit so tight, but the helmet was a larger factor in causing the ear injury more so than the hit. A tight helmet is a safer helmet, considering the alternative is more players losing helmets and running the risk of an eye injury or skull fracture if their helmet came off and they were the bottom of a pile.

  11. Had this been Rugby Union, Mays would have been shown a red card, removed from the pitch, had a hearing before the IRU disciplinary board, removed from the squad for a number of weeks (depending on the seriousness of the offence) and paid a substantial fine. The one thing that would NOT have happened is that the other player wouldn’t have even THOUGHT about a law suit. Their view is that if you play rough and tumble, you are going, at some point, to get hurt. As bettykath so pithily put it: ” If he doesn’t expect to get hurt he needs to find something else to do.”

  12. Years ago I was at a North Stars game and a goon whos name I have forgotten attacked Henry Boucha from behind with his stick. He fractured Henry’s eye socket, blinded him in that eye and ended his career. The Hennepin County Attorney filed assault charges and the whining from the NHL was deafening. It had no place in the sport but they loved the violence. It was dropped eventually for reasons I don’t recall.

    Violent assaults take place, particularly in hockey but also in other sports, that are not part of the action, not part of the game and not part of a legitimate activity in the sport. These should be charged as assaults & players should be prosecuted. Let the teams and players associations cry to the heavens but somebody has to put an end to this sort of thugery.

  13. Romo got the same treatment with no foul called, however, no external damage like a part of an ear loss.

    First is to get the refs real, then perhaps it will diminish.

    The league is going all Roman Arena on us, and possibly us on them.

    What ever happened to that kinder, gentler nation?

    Way too quaint?

  14. If it is not within the rules, there is no consent. Change the rules or let players know they can be charged with battery or sued for violating the rules. I do not like “leeway” and “judgment calls,” they are an invitation to abuse, including favoritism, prejudice, and sadism. If what you want to sell is brutality and violence, you should have to say so up front.

  15. I don’t see it. Slo-mo might help. I’m sure it hurt but I don’t think there will be anything more permanent that a slight scar. If he doesn’t expect to get hurt he needs to find something else to do. Sorry to be so lacking in empathy here but these blood sports are the gladiators to keep the populace entertained. I don’t like contact sports like football, hockey, boxing. i guess it’s a guy thing.

  16. It looked like a bang-bang play to me. It was a helmet to helmet hit, but I am not sure it was more than the one step. However, he should be disciplined for the helmet to helmet hit. I do not see it as an intentional tort.

  17. Now he will have that ear pierced and wear, off turf, a big ring to call attention to his macho macho self.
    How much dope do these guys take? I´d heard a little about baseball, but……?

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