There's a Flag on the Play
November 14th was just another Thursday Night Football game. The Pittsburgh Steelers were trailing the Cleveland Browns, when Cleveland Defensive End Myles Garrett tackled Steelers’ Quarterback Mason Rudolph as he threw a pass. As both players stood up, a fracas ensued. Millions of spectators and Youtube viewers have seen what happened next: Garrett removed Rudolph’s helmet by tugging at the facemask and slammed the helmet into Rudolph’s head. The National Football League has suspended Garrett for the rest of the season and he will forfeit the over $1M salary he would have earned. His suspension may spill over into next season too.
The Garrett-Rudolph episode has raised awareness to an issue many torts scholars and law professors are familiar with: what happens when an athlete participating in a sport injures another player? Are injuries “just part of the game”? Or do regular tort principles apply? Courts in California and across the country have dealt with this issue before. In most cases, courts distinguish between the competitive nature of the sport and intentional conduct. In the realm of professional football, the benchmark case is Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).
Dale Hackbart was a defensive player for the Denver Broncos. The Broncos played the Bengals in a December 1973 game, and during the game, Broncos’ player Billy Thompson intercepted a pass. After the interception, Dale Hackbart blocked Bengals’ running back Charles Clark from attempting to tackle Thompson. The block was successful. Hackbart then began to stand up and watched Thompson carry the ball down the field. At that point, Charles Clark slammed his forearm into the back of Hackbart’s helmet, pushing him to the ground again. After the game, Hackbart was diagnosed with a neck fracture. His football playing days were over. Charles Clark later testified that he had hit Hackbart out of frustration for his team losing the game.
Hackbart later sued the Cincinnati Bengals for battery. The trial court ruled for the Bengals, reasoning that professional football is a “species of warfare and that so much physical force is tolerated and the magnitude of the force exerted is so great that it renders injuries not actionable in court; even intentional batteries are beyond the scope of the judicial process.” The 10th Circuit reversed. It noted that the intentional striking of a player in the head from the rear is not an accepted part of the rules or general customs of professional football. Just because players suit up with pads and helmets does not mean they consent to abandon all reason once they step onto the field. The Court concluded that the intentional infliction of injury is actionable using ordinary tort principles.
The California Supreme Court approved of the Hackbart decision in the seminal 1992 case of Knight v. Jewett, 3 Cal.4th 296. There, the plaintiff suffered a serious hand injury during a pick-up game of touch-football. The Court, in ruling for the defendant, provided a lengthy analysis of the primary and secondary assumption of risk doctrines that has confused first year law students ever since. The Court noted that the competitive nature of sporting activities is bound to cause injuries. Even when the conduct crosses the bounds of acceptable rules of the game and internal sanctions might apply, the Court declined to fundamentally alter the rules of the game by imposing tort liability, unless the conduct is so reckless as to be totally outside the range of ordinary activity involved in the sport.
The Hackbart and Knight reasoning should apply to the Garrett-Rudolph incident, and Mason Rudolph could arguably make a case for battery against Myles Garrett. Rowdy players routinely get in each other’s faces, and pushing and shoving has become the norm in football. But violently removing another player’s helmet and bludgeoning him with it crosses the line of acceptable conduct. Rudolph was examined after the Browns-Steelers game and was determined not to have suffered a concussion. Nevertheless, the battery was particularly concerning because Rudolph suffered a head injury earlier in the season after being tackled in a game against Baltimore. The helmet-to-helmet hit in that game was so severe Rudolph blacked out and went limp before even hitting the ground.
For the time being, Mason Rudolph has told reporters he does not intend on pursuing the case against Myles Garrett. Rudolph is content to submit to the NFL and allow the League’s discipline process to take its course. This might change if it turns out he is injured worse than expected. Dale Hackbart sued the Bengals years after the initial Charles Clark battery. He pursued the case when he discovered that he was at risk of having his arm amputated because of nerve damage from his neck fracture. Many tort lawyers can attest to the delay between an injury-causing event and the onset of symptoms. Let’s hope Mason Rudolph does not have any surprises in the years to come.
