A Civil Action: The New Orleans Saints Bounty Scandal

Although it is unlikely that any former opponents will sue the New Orleans Saints players accused in the bounty scandal, here are a few possible issues those players may face if they are sued. There are a few causes of action that the participants in the Saints bounty scandal might want to consider; intentional torts being one of them. Tort law exists under common law, meaning that the rules that govern tort law are not created by statutes, but through other cases (case law). Torts against the person fall under two categories:  intentional torts and negligence. (Thanks to Alicia Jessop).  The intentional torts the Saints players may be liable for are assault and battery. Assault is defined as the intent to cause reasonable apprehension of harmful or offensive contact. Battery is defined as intentionally causing unconsented harmful or offensive contact. It’s not difficult to prove that the players involved in the Saints bounty scandal intended to cause reasonable apprehension of imminent harmful or offensive contact upon their opponents; and because the players actually intended to make contact with their opponents, they can be liable for battery as well. You might be thinking, “Why aren’t players suing each other every week then?”

There are defenses that can and will be raised against any potential lawsuits. Consent is one defense the Saints players may use to counter the potential lawsuits against them. Consent can be express or implied. Express consent may come in the form of a waiver signed by the players which I don’t believe they do. Football players impliedly consent to a certain amount of violence and physical contact when they take the field. The argument that can be made by the Saints players is the opponents knew they were involved in a violent game and so they cannot recover for injuries.

Another defense that can be used to counter a lawsuit is assumption of risk. Assumption of risk is a defense for negligence, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks inherent to the dangerous activity in which he was participating at the time of his injury. (Wiki). In this case, you might think it is difficult for a player to sue for a hit that was on the field during an NFL game. After all, football is a violent sport and the NFL has some of the biggest, fastest, and strongest athletes; a combination that can result in the most violent hits.

One of the most prominent cases that is commonly discussed when addressing this issue is Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979). In Hackbart, Dale Hackbart, a defensive back for the Denver Broncos, was struck in the back of the head by Charles “Booby” Clark of the Bengals after an interception by the Broncos. Both players fell to the ground after the hit and neither player complained to the referees and no penalty was called, as the officials didn’t see it happen. Both players also continued to play in the game. Hackbart later decided to sue Clark for the injury. Although Hackbart did not seek medical attention, he claimed he was unable to play golf the next day without pain (yes really). The trial court ruled in favor of the Bengals essentially saying, Hackbart should have known of the risk of being injured while playing an inherently violent game. The appeals court however reversed the decision, holding that although players impliedly consent to playing a violent sport and the scope of that consent does not extend beyond the rules of the game. The end result of Hackbart was that a player is entitled to try and recover for injuries resulting from conduct that is beyond the rules of the game; or conduct that amounts to an intentional tort.

Applying the rule in Hackbart, the Saints players accused in the bounty scandal may be held liable for assault and battery if it can be proved beyond a preponderance of the evidence (generally greater than 50%) that they intended to cause reasonable apprehension of immediate harmful or offensive contact, actually intended to cause the harmful or offensive contact, and  their actions were outside of the rules of the game. The last element listed, “outside of the rules of the game”, is the most important as Hackbart demonstrates. The NFL prohibits “All payouts for specific performances in a game, including interceptions or causing fumbles, are against NFL rules. The NFL also warns teams against such practices before each season.” (According to this WSJ article). The NFL claims to have documentation of payouts for hits in the Saints bounty scandal. This would clearly qualify as “outside the rules of the game” and therefore open the players involved up to liability for the intentional torts of assault and battery.

Another defense the Saints players may be able to use is vicarious liability under respondeat superior. The Saints players may claim they had no choice but to act in the manner their superiors (coaches in this case) asked them to. To claim this defense the Saints players have to prove that the harm was done within the scope of their employment. With the revelation of the recording of Saints assistant coach Gregg Williams encouraging and asking his players to focus on the injuries of the opposing teams players, the Saints organization will likely be opened up to vicarious liability through the doctrine of respondeat superior.

A possible note to the attorneys representing the Saints players: “Kill the head and the body will die”. Thanks Gregg.

Do you think the players who faced the Saints should sue for damages? Do you think the  New Orleans Saints should be held liable for the bounty scandal?

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About Rajiv Radia

Rajiv is a third year law student at American University - Washington College of Law in Washington DC and a long time sports fanatic.
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