BY: DEAN ROSENBERG
Football is a dangerous sport - there are eleven big, strong, athletic players on each team crashing into one another at full-speed on every play. The margin for error between a game-changing play and a game-changing penalty is razor thin. With advances in medicine and research in the last fifteen years, public pressure to combat concussions proliferated. To fight against helmet-to-helmet hits, in 2008 the NCAA created a targeting rule, which “forbid players from making forcible contact with the crown of the helmet or making forcible contact to the head or neck area of an opponent. The rule has been amended thrice since then: (i) in 2013, a clause was added in which a player called for targeting would be disqualified for the remainder of the game; in 2016, targeting calls were eligible to be reviewed and overturned (or assessed and levied after the fact); and in 2019, the replay rules were amended to require the booth to either confirm or deny targeting (no longer could referees defer to whatever call was made on the field, given a lack of overwhelming evidence on one side or another).
The NFL also has implemented targeting rules to discourage defenders from leading with their heads to make tackles, but a massive difference is that the NCAA rule includes a suspension in addition to a 15 yard penalty whereas the NFL rule just includes the penalty. One must make several different illegal hits in order to be suspended from an NFL game. A college player, on the other hand, needs just one momentary lapse in judgement in a game full of marginal battles and hundreds of split decisions, to be suspended from future competitions. These new rules have certainly forced coaches and players to put an emphasis on fundamental tackling and discourage hard hits on bang-bang plays. Despite this, football is a game of instinct and reaction, and the NCAA may be unfairly punishing players by doubly-penalizing them and by negating any requirement of intent.
In his research, criminal law scholar Jerome Hall lays out seven common elements of all crimes: legality; mens rea; act; concurrence; causation; harm; and punishment. Fellow scholar James Fitzpatrick notes that for one to infer a mens rea relevant to criminal guilt you must have (i) intent to do an act, and (ii) knowledge of the circumstances that makes that act a criminal offense. In football terms, this should equate to a player being guilty of committing targeting when they (i) intend to make the helmet-to-helmet tackle (intent) and (ii) are aware of the rules that forbids helmet-to-helmet tackling (knowledge of circumstances. This belies the problem of the targeting rule - the game is moving so quickly that it would be extremely difficult to conclude beyond a reasonable doubt that a player intended to make that sort of illegal tackle. For instance, a defensive player might lower his head to make a tackle at an offensive player's waist, which is legal. If the offensive player simply ran right into him and got tackled at the waist, there would be no issues. But if that same offensive player tripped and fell, or lowered his head to ‘run through’ the defender, the ensuing contact would become illegal and more often than not the defensive player is penalized, despite a clear lack of intent. It can be concluded that whenever a targeting play is in question there was a helmet-to-helmet hit. However, it can not be concluded that any play resulting in helmet-to-helmet contact was intentional. Punishing a player (and his team) with a fifteen yard penalty plus an automatic first down in addition to a suspension seems severe. In the 2020 College Football Semi-Final, one of Clemson’s best defensive players and a leader on their defense, James Skalski, was ejected after a hard hit on Ohio State’s quarterback Justin Fields in the first half of the game. It is true that Skalski’s tackle was illegal and Ohio State should be awarded fifteen yards and a first down, but throwing Skalski, a fifth year senior, out of what could have been his last college game on a bang-bang play like that is cruel.
These targeting calls have a ‘strict liability’ feel to it, which in the legal world can be best described as ‘an illegal act occurred. It doesn’t matter what you were thinking or why you did it, if you were the person who did it, you are responsible.’ Perhaps when an issue as critical as the mental and physical well-being of young adults is in play, it behooves an organization to approach with as much caution as possible. Concussions are a serious issue in football and the NFL and NCAA should be lauded for their recent efforts to change the rules to prioritize player safety. With that being said, the college targeting rule triggers an automatic replay review to look at the play. If a player’s malintent can’t be inarguably concluded, it may make more sense to let that player finish the game and use the week in between games to study the replay and make a better decision on the suspension. As of now, the suspensions as a result of targeting penalties can not be appealed, and for young men who are playing college football because they love it, the difference between a game-changing play and a life-changing suspension is too small.
Sources: https://www.uscannenbergmedia.com/2021/04/02/the-scoop-and-score-the-targeting-rule-in-college-football-is-perfect-how-it-is/  https://www.si.com/college/2018/08/21/college-football-helmet-targeting-rule-explained  https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3136&context=ilj#:~:text=They%20%22stipulate%20what%20is%20common,causation%3B%20harm%3B%20and%20punishment.  https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3136&context=ilj#:~:text=They%20%22stipulate%20what%20is%20common,causation%3B%20harm%3B%20and%20punishment.