The Sports Blawg with the Fordham Sports Law Forum

On March 2, it was revealed that members of the New Orleans Saints coaching staff, including former defensive coordinator Gregg Williams, implemented a “bounty program” where defensive players would be compensated $1,500 for “knockout” hits that rendered specific players unable to return to the game, and $1,000 for “cart-off” hits that temporarily removed a player from the contest.  While the NFL has punished general manager Mickey Loomis, head coach Sean Peyton and former defensive coordinator Gregg Williams, the franchise itself, and could take action against some of the players involved, the culprits could also be liable for a number of different torts, including battery.  While it is unlikely that we see any legal action against the perpetrators in the near future, Bountygate could have an immediate impact on the league by strengthening the class-action lawsuit filed by retired players against the NFL for withholding information about the long-term effects of concussions, which was the subject of a January entry on this blog.

Although football requires physical contact that can lead to injury, competitors who intentionally injure others, and coaches who direct athletes to do so, could be liable for a number of different torts.  It is universally accepted that whenever an athlete voluntarily participates in an inherently risky sport, the athlete assumes the risk of injury that occurs within the ordinary conduct of the sport.  In football, for example, the competitors are barred from recovering damages for any injuries resulting from the risky and dangerous nature of the sport.   While competing athletes and coaches do not owe a duty of care to protect the injured athlete from the inherent risks of the sport, they do owe a duty not to either intentionally injure the athlete or recklessly increase the risks of the sport.

By incentivizing vicious conduct that injured opposing players, New Orleans Saints coaches and players increased the inherent risks of the sport. Because this conduct is outside the ordinary activity of football, players who fall victim to the “bounty program” have not assumed this level of risk.  An injured athlete could, therefore, potentially recover damages for injuries sustained from the intentionally violent hits that earned Saints defenders their bounties.

Assuming that the Saints’ bounty program proximately caused the injuries, the coaches and players involved could be liable for anything ranging from the criminal offense of battery to civil negligence.  A football player is liable for battery when he uses force on an opposing player “beyond the scope of what is ‘normal’ in an NFL game.”  There could also “be an argument that there was a battery as a result of conspiracy.”

Besides the legal claims that could arise from Bountygate, the scandal could also provide a “big boost” for retired players who recently brought a class action suit against the NFL, alleging that it withheld pertinent information about the long-term health effects of concussions.  The NFL’s collective bargaining agreement precludes all current and ex-players from filing suits against teams, and instead mandates that they must bring their disputes to arbitration.  Consequently, the NFL has insisted that the class-action suit must be solved in arbitration.

The retired players, however, can overcome this provision in the CBA by proving that the NFL acted with grave misconduct or engaged in fraud.  If the retired players can first prove that some concussions occurred as a result of a bounty program and show how it exemplifies the grave misconduct of the league, their chance of appearing in front of a jury would be strengthened.   A jury could be more likely than an arbitrator to reach a favorable verdict for the ex-players.  According to Michael McCann, the director of the Sports Law Institute at Vermont Law School, “lawyers in these lawsuits will use evidence of the bounty program to show that the league is not safe.”  In doing so, the plaintiff’s ability to underscore the fraudulent nature of the NFL will be bolstered.

While the immediate impact of  Bountygate has resulted in fines, suspensions, and the forfeiture of some draft picks, the potential legal ramifications are numerous.  Even if the perpetrators of Bountygate are not sued for their conduct, the plaintiffs in the class action suit against the NFL stand to gain from the reckless conduct by the New Orleans Saints coaches and players.

 The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.