By Benjamin A. Kling, Associate Editor
On November 14, 2019, during a primetime, nationally televised NFL game between the Cleveland Browns and the Pittsburgh Steelers, a commotion developed at the end of the fourth quarter.[1] With eight seconds left in the game, Steelers quarterback Mason Rudolph threw the ball on a run-of-the-mill pass play to his running back on a swing route. It was an ordinary play to end the game—until it wasn’t. This play would eventually result in multiple player suspensions, $250,000 fines to both the Browns and the Steelers, and a lingering question: should league requirements be loosened in order to subject professional football players to civil liability for actions on the football field?[2]
After throwing the ball to his running back, Rudolph was tackled by the Browns defensive-end, Myles Garrett.[3] Garrett and Rudolph continued to tussle with one another on the ground. After the whistle blow ended the play, Rudolph seemingly attempted to remove Garrett’s helmet.[4] Once the two stood up, still holding one another, Garrett took Rudolph’s helmet off and forcefully hit Rudolph in the head with his own helmet.[5] Following this blow, Steelers’ offensive lineman David DeCastro tackled Garrett to the ground. Then, Steelers’ offensive lineman Maurkice Pouncey jumped on Garrett, threw punches at him, and kicked him in the head.[6]
In 1973, a situation similar to the Rudolph-Garrett incident occurred during a game between the Denver Broncos and the Cincinnati Bengals. This incident gave rise to the Tenth Circuit Court of Appeals case Hackbart v. Cincinnati Bengals, Inc.[7] In Hackbart, Dale Hackbart watched an interception unfold while Charles “Booby” Clark, running back for the Bengals, “stepped forward and struck a blow with his right forearm to the back of” Hackbart’s “head and neck with sufficient force to cause both players to fall forward to the ground.”[8] Clark later admitted in a deposition that the strike was not accidental and was intentionally administered.[9]
I. Hackbart v. Cincinnati Bengals, Inc.
At the district court level (“Hackbart I”), the judge dismissed Hackbart’s action based on the reasoning that football is a species of war, so violent in nature that “even intentional batteries are beyond the scope of the judicial process.”[10] The district court judge went as far as to suggest that there was no “discernible code of conduct for NFL players” when discussing whether the court had authority to determine the appropriate restraints when it comes to balancing contact sports and civil liability.[11]
The court of appeals found otherwise (“Hackbart II”). Reversing the district court’s finding and remanding for a new trial, the court held that the applicable standard was reckless disregard of the rights of others as opposed to the intentional tort of battery.[12] On appeal, the court in Hackbart II found that recklessness was a lesser offense as compared to battery.[13] Battery requires intent to do a specific act and intent for that act to result in harm to the other person.[14] Recklessness, on the other hand, requires the actor to intend to do an act which would “lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”[15]
The Hackbart II court held that an athlete could be found liable for civil battery if his conduct was done in reckless disregard of the rights of others.[16] However, upon remand to the district court, Hackbart and the Bengals reached an out of court settlement, so the case never reached a disposition on the merits.[17]
II. Myles Garrett and Other Athletes’ Questionable Acts
Myles Garrett removed another player’s helmet and used it as a weapon, making contact with his victim’s bare head on the football field.[18] A professional football player understands that a helmet is a blunt object that can cause serious injury. In this way, Garrett’s actions were so clearly outside of the scope of football such that the district court’s argument in Hackbart I is ineffectual.[19] Indeed, the NFL has a specifically written rule that provides“[a] player may not use a helmet that is no longer worn by anyone as a weapon to strike, swing at, or throw at an opponent.”[20]
Pursuant to the holding in Hackbart II, Myles Garrett acted in reckless disregard of the rights of his fellow players.[21] Garrett acted with an intent to strike Mason Rudolph in the head with a football helmet, which, under Hackbart II, establishes a claim for civil battery. Garrett’s conduct is not only outside the scope of football and explicitly against the rules, it is conduct that could cause serious bodily harm.
Maurkice Pouncey, mentioned above, jumped onto the pile after Garrett struck Rudolph, stood up, then kicked Garrett in the head.[22] Similar to Garrett’s actions, Pouncey’s behavior constitutes reckless and intentional conduct.[23] However, Pouncey’s case is somewhat distinguishable from Garrett’s because Garrett still had his helmet on when Pouncey kicked him (which is still outside the scope of the game and explicitly against the rules).[24] It is arguable whether Pouncey’s conduct, kicking someone with a helmet on, would “lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”[25]
III. Conclusion
The acts in the primetime game between the Steelers and the Browns are not the only instances of athletes acting outside the scope of the sport they are playing, both professional and amateur.[26] The district court judge was misguided when he stated that “in the case of football it was questionable whether social values would be improved by limiting the violence.”[27] Football is an inherently violent contact sport and the violence inherent in the game and within the rules of play should not be interpreted by the courts. However, when the actions of the athletes reach the level of swinging helmets at one another, kicking downed players in the head, or punching a kneeling player in the back of the neck, athletes must hold one another accountable. And, the courts must hold athletes liable for civil wrongs that are so far removed from the sport that they become actionable torts.
Footnotes
[1] Jabari Young, Browns’ Myles Garrett suspended ‘indefinitely’ without pay after striking Steelers QB with helmet, https://www.cnbc.com/2019/11/15/browns-myles-garrett-suspended-without-pay-after-striking-steelers-qb-with-helmet.html (visited Jan. 10, 2020).
[2] Id.
[3] Id.
[4] Jordan Frieman, Mason Rudolph fined $50,000 for role in Steelers-Browns brawl, https://www.cbsnews.com/news/mason-rudolph-fined-50000-for-role-in-brawl-with-myles-garrett-during-steelers-browns-game/ (visited Jan. 10, 2020).
[5] Timothy Rapp, Report: Steelers' Mason Rudolph Fined $50K for Brawl with Browns' Myles Garrett, https://bleacherreport.com/articles/2863980-report-steelers-mason-rudolph-fined-50k-for-brawl-with-browns-myles-garrett (visited Jan. 10, 2020).
[6] National Football League, Myles Garrett & Mason Rudolph Brutal Fight! | NFL (2019•14•11) Helmet SHOT!, YouTube (Nov. 14, 2019), https://youtu.be/_PMHlURlxus?t=85.
[7] Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979)(“Hackbart II”).
[8] Id. at 519.
[9] Id. It should be noted that Hackbart did not immediately report his injuries to the Broncos’ training staff. He continued to play through the following two games and did not report the injury until after he had been released by the Broncos.
[10] Id. at 518-519.
[11] Hackbart v. Cincinnati Bengals, Inc., 435 F.Supp. 352 at 358 (D. Colo. 1977)(“Hackbart I”). While football is inherently violent, stating that there is no “discernible code of conduct” is seemingly erroneous. The NFL has a rulebook, this rulebook penalizes players for their actions and calls for ejecting the player from the game in certain instances. The NFL rulebook is code that determines what conduct is, and is not, acceptable.
[12] Hackbart II., 601 F.2d at 524. The court found that recklessness was somewhere between acting negligently and intending to cause harm. The court stated that recklessness requires the actor to have only a intent to do the act whereas battery requires an intent to cause harm.
[13] Id. (“[W]e are saying that these concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.”).
[14]Restatement (Second) of Torts: Battery: Harmful Contact § 13 (Am. Law Inst., 1965).
[15] Restatement (Second) of Torts: Reckless Disregard of Safety Defined § 500 (Am. Law Inst., 1965).
[16] Hackbart II., 601 F.2d 516 (finding that actions on the professional football field are not outside of the jurisdiction of the courts and that actions by players which fit the definition of reckless or another intentional tort are actionable).
[17] NY Times, Hackbart in Settlement With Bengals on Injury, https://www.nytimes.com/1981/07/05/sports/hackbart-in-settlement-with-bengals-on-injury.html (last visited Jan. 10, 2020).
[18] See Jabari Young, Browns’ Myles Garrett suspended ‘indefinitely’ without pay after striking Steelers QB with helmet, https://www.cnbc.com/2019/11/15/browns-myles-garrett-suspended-without-pay-after-striking-steelers-qb-with-helmet.html (visited Jan. 10, 2020); Jordan Frieman, Mason Rudolph fined $50,000 for role in Steelers-Browns brawl, https://www.cbsnews.com/news/mason-rudolph-fined-50000-for-role-in-brawl-with-myles-garrett-during-steelers-browns-game/ (visited Jan. 10, 2020); and Timothy Rapp, Report: Steelers' Mason Rudolph Fined $50K for Brawl with Browns' Myles Garrett, https://bleacherreport.com/articles/2863980-report-steelers-mason-rudolph-fined-50k-for-brawl-with-browns-myles-garrett (visited Jan. 10, 2020).
[19] See Hackbart I, 435 F. Supp. at 358 (stating that football is a violent game and a species of warfare).
[20] National Football League, 2019 NFL RULEBOOK, https://operations.nfl.com/the-rules/2019-nfl-rulebook/, Rule 12 § 2 Article 17: Use of Helmet as a Weapon (last visited Jan. 10, 2020).
[21] See Restatement (Second) of Torts: Reckless Disregard of Safety Defined § 500 (Am. Law Inst., 1965); and Restatement (Second) of Torts: Battery: Harmful Contact § 13 (Am. Law Inst., 1965).
[22] National Football League, Myles Garrett & Mason Rudolph Brutal Fight! | NFL (2019•14•11) Helmet SHOT!, YouTube (Nov. 14, 2019), https://youtu.be/_PMHlURlxus?t=85.
[23] Id.
[24] National Football League, 2019 NFL RULEBOOK, https://operations.nfl.com/the-rules/2019-nfl-rulebook/, Rule 12 § 2 Article 14: Striking, Kicking, or Kneeing Opponents (last visited Jan. 10, 2020).
[25] Restatement (Second) of Torts: Reckless Disregard of Safety Defined § 500 (Am. Law Inst., 1965).
[26] See Sean Newell, Ndamukong Suh Suspended for Stomping, Again (Bonus: History of Suh Stomps Included), https://www.vice.com/en_us/article/yp7jqj/ndamukong-suh-suspended-for-stomping-again-bonus-history-of-suh-stomps-included (last visited Jan. 10, 2020); Andy Katz, Cincinnati, Xavier Reveal Suspensions, https://www.espn.com/mens-college-basketball/story/_/id/7341744/cincinnati-bearcats-suspend-four-players-brawl-xavier-musketeers (last visited Jan. 10, 2020); and Charlie Nobles, 31 Players Suspended for Miami-F.I.U. Brawl, https://www.nytimes.com/2006/10/16/sports/ncaafootball/16miami.html (last visited Jan. 10, 2020).
[27] Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 520 (10th Cir. 1979).