There is a new development in the controversy over two Texas High School players, Sophomore Victor Rojas, 15, and senior Michael Moreno, 17, who tackled a referee during a game earlier this month. The players said earlier that they were following the orders of John Jay High School assistant football coach Mack Breed. Now, there is a report that Breed admitted to giving such an order. Beyond the disciplinary issues, that also raises some interesting criminal and tort issues. Update: Breed has now been fired.
Breed reportedly told the players to target the ref because he said the official had used racial slurs. Principal Robert Harris stated the following in a letter:
“Coach Breed told me that he directed the students to make the referee pay for his racial comments and calls. He wanted to take full responsibility for his actions. Mr. Breed at one point during our conversation stated that he should have handled the referee himself.”
Students Rojas and Moreno however have been suspended.
The issue of when sports violence becomes a tort or a crime has long challenged courts in this country.
Some judges have been less tolerant of the idea of violence being an industry custom in hockey. In the case of Dino Ciccarelli of the Minnesota North Stars, he was jailed for a day and fined him $1,000 for assaulting Luke Richardson during a game. The court did not view the fact that an assault occurred inside a rink as opposed to the street as negating its criminal character.
Likewise, in a charge stemming from an assault during a Boston Bruins and Vancouver Canucks game, Marty McSorley was found guilty of assault with a weapon but was granted a conditional discharge.
Here the hit on the ref could easily be viewed as an assault ordered by Breed. That would also entail charges against the teenagers. Since there is no allowance for any such contact with a ref, it was clearly a premeditated assault occurring outside of the rules of the game. Breed could argue that he was not actually calling for a hit as opposed to the venting of anger. However, that would become a jury question.
The issue of proving intent beyond a reasonable doubt would not be present in a tort filing for battery, which must be proven by a preponderance of the evidence. 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 court ruled that the hit fell outside of the NFL rules and thus Hackbart did not consent to such a battery. 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.
Of course, two teenage players are not a case of employees whose actions are attributed to an employer under respondeat superior. However, they are under his supervision and acted under his admitted instructions. That raises respondeat superior issues for the high school as well as liability for Breed.
Do you think that this should be a criminal case for Breed and/or the teenagers?