A batter digs into the soft brown dirt to face down a pitcher throwing a ball at nearly 100 miles per hour. A halfback takes a football and runs full-charge into players looking to hit him with the same physical force of a small car. A basketball player dives into a sea of elbows chasing a stray ball. Incidents like this happen every day across America. Sports have become so ingrained in our culture that we often take the inevitable injuries as a given in these situations. Recently, however, lawsuits have come forward questioning whether such injuries are a given in all sports contexts and whether parties should be held liable due to sports injuries.
Generally, sports are held to be somewhat dangerous activities involving a certain assumption of risk: being hit by a fastball, a brutal tackle at midfield, an errant elbow in a basketball game are all simply part of the game. In order for athletes to assume the risks that come along with sports, the athlete must have knowledge of the risk, appreciation of the gravity of such a risk, and willingly put themselves in harm. As the old saying goes: no pain no gain.
Courts have made a distinction between the contact sports involving direct physical contact between participants and non-contact sports which involve minimal or no contact between participants. In Cohen v. Brown University the court defined contact sports as including “boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.” This is a rather contentious definition: the most hardened football fans would not consider baseball a contact sport; however Major League Baseball would disagree. States which do make the contact/non-contact distinction are faced with problems of this nature when injuries outside of the “traditional” sports come up on the docket. Further complicating matters is the potential for serious injury in “non-contact sports” such as tennis where balls are served at speeds as high as 128 MPH. While there is no direct physical contact between players, tennis balls can and do cause serious injuries. Not to mention a less well known game that is considered the world’s most dangerous: jai alai.
Why divide sports between contact and non-contact sports for liability purposes? Assumption of risk plays a heavy part in these considerations: a participant in a contact sport like rugby would expect (in fact take pride in) serious injuries whereas as league night at the bowling alley comes with a certain expectation of safety. If a bowling ball were to suddenly broadside a players head, or a player were to slip from an over-oiled floor, it would almost certainly be the result of negligence, recklessness, or an intentional act.
APPEAL TO THE CHEEROCRACY
The divide between contact and non-contact sports came to a head in the case of Brittany Noffke, a varsity cheerleader at a Wisconsin high school. Brittany was part of a squad executing a difficult move when Kevin Bakke, the male cheerleader holding her on his shoulders, failed to catch Britney on her way down. Ms. Noffke plunged to the gym floor headfirst, sustaining serious head injuries. Noffke’s parents then proceeded to sue both the school district and Bakke. Noffke contended the coach was negligent for not having a second spotter or protective mats on the floor when the move was performed. In Bakke’s case, the Noffke family contended that his failure to catch Brittany was a reckless act.
The Wisconsin Supreme Court dismissed both arguments, finding that cheerleading does constitute a contact sport, and thus participants enter with an assumption of risk. The Court cited to the “spirit rules” of the National Federation of State High School Associations, which contained photographs of several formations involving close contact between participating cheerleaders. The coach and school district could not be held liable for the injuries because of the assumption of risk any contact sport has.
As for Bakke, he was found to have not recklessly performed his duties freeing him from any liability for the accident. The Court agreed with Bakke’s assertion that his failure to catch Brittany was “mere inadvertence, lack of skillfulness or failure to take precautions,” did not constitute reckless behavior. While essentially ending Noffke’s ability to recover damages, this ruling was actually hailed as protective of cheerleaders. Mistakes in even the most practiced and seasoned squad do happen, and Wisconsin freed them from liability for mistakes during a performance or routine. Coaches across the country praised the ruling, as they had worried a ruling the other way would have a chilling effect. Having given cheerleaders some leeway from liability for mistakes, squads can continue to “be aggressive-b-e aggressive” in their routines.
ANOTHER BALL IN THE TREES
Three time Master’s winner Jimmy DeMaret was once quoted saying that “Golf and sex are the only two things you don’t have to be good at to enjoy.” Because golf is a sport that appeals to both “fairway challenged” individuals as well as the more skilled ones, errant balls have become somewhat ingrained in the sport. Even an experienced pro jock can have an occasional problem.
Golf is unquestionably not a contact sport, which raises the question of errant golf balls. When one strolls onto the golf course is there an assumption of risk that you might be hit by an errant ball? In the state of California the answer is “yes.” Despite golf being a decidedly non-contact sport, the courts of California have held in Shin v. Ahn “that the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport.” The opinion (which includes footnotes defining what “shanking” a golf ball is) was no doubt a favorite amongst the duffers of the world, the court stating that “Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction.” Mulligan and shouts of fore now seem to have a somewhat legal dimension.
ADVANTAGES AND DISADVANTAGES OF LIABILITY FREE SPORTS
Participants in sporting events will likely tell you that competition, as Yogi Berra once quipped, “is 90 percent mental, the other half is physical.” Allowing athletes to compete without worry that they’ll be held liable for the resulting injuries that may occur allows for aggression in sports: the same aggression that make competing so enjoyable to both participants and spectators alike. If athletes were held personally liable for the injuries they inflict during the course of play, professional sports in North America would suffer dramatically. The NFL and college football (not to mention high school football), arguably America’s most popular sport, would be virtually non-existent if players were held to be personally liable. If such leagues were able to survive, in the era of the super agent more aggressive players might negotiate “team liability” clauses forcing the team to take responsibility for the player’s actions.
Sports must adhere to a strict set of laws, rules, or guidelines in order to facilitate fair competition. However, every sport has its unwritten rules and sometimes these can clash with the intentions of the game.
Take baseball for example. Hall of Famer Don Drysdale once said that an intentional walk was “a waste of three pitches” and over his career, Drysdale earned a well deserved reputation as a “headhunter.” Brush back pitches and bean ball wars where pitchers will “protect” their hitters from the opposing pitchers by aiming at the head do occur from time to time. Such a pitch is not a sanctioned part of baseball, and pitches thrown at the head can be extremely dangerous. Holding pitchers liable for their intentionally thrown bean balls might discourage this dangerous practice. Things get a little murkier in sports like hockey where fighting is an accepted part of the culture.
Similar principles would apply in football. Defensive lineman might think twice before a late hit on a quarterback if they risked more than a 15 yard penalty and a fine from the NFL. Do players in these sports assume a risk that players would conduct themselves in a manner outside the rulebook? Arguably quarterbacks assume a certain risk of a late hit when they take the field: if such a hit were unanticipated then there would be no penalty for such behavior. Football does an exceptionally good job of addressing these potential problems as the occur, one only need to look at the leagues swift response to horse collar tackles.
“LOOK FOR LOW AND AWAY. BUT WATCH OUT FOR IN YOUR EAR.”
Sports are as much an expression of the human desire to achieve newer and greater feats of physical performance as a competition between individuals. When an athlete steps onto the field of play they assume many risks: failing themselves, failing their teammates, failing their gifts. The risks weigh heavily on the mind of an athlete, as does the fear of injury. Ultimately athletes should feel free to compete and focus on the game at hand, rather than finding a good tort lawyer.
But when injuries do occur, it’s best to have a good sense of humor about these things. Or, as legendary college football coach Bear Bryant said “There’s no substitute for guts.”