• Austin Scherer

Torts Illustrated: Where Is The Line?



The life of a New York Giants fan offers you the highest highs and the lowest lows. I still romanticize the joyous memory of David Tyree catching a football on his helmet in Super Bowl XLII, but I am still haunted by the Deshaun Jackson’s punt return to win the game aka Miracle at the Meadowlands II. August 3, 2021 will not have the same imprint, but after a giant brawl (pun intended) occurred at training camp, it is safe to say that will be added to the column of bad memories.


Football is a collision sport, violence is part of the nature of the game, and unfortunately that violence goes beyond a six second play. So where is the line for athletes? When do their actions go from, “it is the name of the game,” to legal ramifications? While the law tends to embrace the abstract, we do have a few cases that can help guide you when the next brawl happens.


The case of Hackbart v. Cincinnati Bengals raised the issue of does a professional football player assume the risk of injury, thus denying him recovery of damages? The facts of this case are simple, Dale Hackbart, a member of the Denver Broncos, claimed he received injuries after an altercation from Charles Clark, a member of the Cincinnati Bengals.[1] The court ruled in favor of the Cincinnati Bengals raising the following point: even if Clark acted beyond the capacity of his professional duty, the high frequency of physical and emotional violence in the game was standard for the league. In laymen’s terms, you are playing a physical game, it comes with the territory.


But for those of you that may be looking up the year of the case, you might proclaim, “Austin that was in the late 1970s, the league has changed!” Well, I am here to offer more examples to further draw the line. Let’s use an example from Nov. 2019, the Myles Garrett-Mason Rudolph fight. For this article, we will not discuss what was allegedly said and we will only use what was available to the naked eye. The odds of Garrett receiving criminal charges were low to begin with but using the legal definition of assault in the state of Ohio, the location of where the brawl occurred, the elements of assault must have the following: knowingly causing or attempting to cause physical harm on another person, with imminent apprehension. These elements are met. However, there is glaring absence in American jurisprudence of professional athletes being charged with assault-like crimes for incidents that occur during games. Prosecutors fear that charging individuals with these crimes would cause a complete disruption to the games itself.


So where is the line? We will need to jump to a different sport, hockey to find an athlete being charged and convicted of assault. The incident I am referring to is Marty McSorley. Marty McSorley used his hockey stick that sent Vancouver Canuck, Donald Brashear, to the ice. Commissioner Gary Bettman stated, “clearly, this incident was not representative of NHL hockey or NHL players.” While it cannot be proven, McSorley was a regaled enforcer in the league, and since that ruling, the enforcer player, the “goon,” is slowly turning into the likes of the dodo bird, extinct. Like the many fears prosecutors had with the game of football, perhaps their worries came to fruition in the likes of hockey. Interestingly, this ruling occurred in Canada, so while there is similar jurisprudence to American law, it cannot be said that they are the same.


Now, to answer the initial question, where is the line? Judging from rulings and how courts have interpreted the game, a brawl would need to go beyond fists and helmets, the crime itself would need to become so egregious that it went beyond the cold tundra, examples may be: a player, I do not know how this would happen, bringing a deadly weapon on to the field, or something to that extremity. If you are a professional athlete, my non-expert, non-legal advice is this, do not get into a serious brawl in Canada. Even with potential injuries, sports are the modern-day version of Roman gladiators, if you have the willingness and courage to step on to the professional field, to quote Public Enemy, “welcome to the terror dome.”

[1] Hackbart v. Cincinnati Bengals, 435 F. Supp. 352 (D. Colo. 1977).