He Shoots, He Sues

The risk of sports turns into the risk of torts.

In 1973, high school athlete Julian Nabozny was playing goalkeeper for his Winnetka, Illinois, soccer team when he collided with a boy on the opposing side. As Nabozny knelt down to receive a pass, David Barnhill came hurtling toward him, kicking him in the head. Many agreed that Barnhill could have avoided the hit. So Nabozny sued.

No one was surprised when he lost. Judges and juries had routinely ruled that athletes accepted a certain amount of risk of physical injury when they stepped onto the field; getting hurt was part of the game. But in 1975, the Illinois appellate court reversed course, concluding that the goalie had a legitimate claim. Even though sports can be risky, the court opined, "Some of the restraints of civilization must accompany every athlete on the playing field." Nabozny settled for $65,000.

In the thirty years since, courts have struggled to separate rough play and reasonable risk from lawsuit-inspiring negligence. The difficulty is that sports are unscripted physical contests, and participants get hurt. So when does one player bear responsibility for the injuries of another? It can be a tough call.

Mark Andresen

For starters, judges are less likely to punish athletes who follow the rules. As long as a player willingly enters a contest and his behavior remains within the guidelines of the sport's rulebook, he may hit, push, slap and kick out of reach of the law -- no matter how serious the damage.

In a 1978 pre-season football game, Oakland cornerback Jack Tatum tackled New England Patriots wide receiver Darryl Stingley so hard that Stingley was rendered an instant quadriplegic. The NFL decided it was legal, and while Stingley went home in a wheelchair, Tatum -- whose nickname was "The Assassin" -- continued his career without interference from attorneys.

In games in which contact is central to play, however, the line between a nice hit and a nice lawsuit can blur. Denver Broncos defensive back Dale Hackbart suddenly found himself playing offense after a teammate intercepted a Bengals pass in a 1973 game against Cincinnati. As the Broncos ran back the interception, Bengals running back Boobie Clark slammed his forearm into Hackbart's neck while Hackbart was kneeling on the ground.

No penalty was called -- so, technically, no illegal play existed. Nevertheless, Hackbart later sued. The judge was unsympathetic. Describing football as a form of "warfare" in which violent injuries were common -- even anticipated (why else do players weigh 300 pounds and wear helmets?) -- he tossed the lawsuit. A federal appeals court disagreed, noting that the game's rules, in fact, prohibited blows intended primarily to cause injury. Hackbart later settled out of court with Clark and the Bengals.

The Hackbart and Nabozny cases set the stage for future lawsuits by establishing a couple of basic ground rules. First, even in the most brutal sports, not everything goes. And second, illegal hits are, in fact, illegal -- even in a game in which roughness rules and pain is celebrated.

But those rules haven't ended the discussion, and there is still plenty of gray territory regarding the journey from gymnasium to courtroom. For instance, what to do with injurious conduct that is not necessarily covered in the rulebook -- but that is nevertheless commonly accepted play? Hockey and fighting are classic examples.

Players mix it up in every sport, of course. Clearly, though, anyone who follows hockey knows that the NHL is different when it comes to tolerating fisticuffs. Fights are an important part of the game, and media coverage is heavily brawl-intensive. Even the game's vocabulary acknowledges and celebrates its altercations: Skaters hired to protect the so-called skill players are known as "enforcers," and it is understood that it's their job to do more than just taunt the opposition.

This past spring, a game between the Philadelphia Flyers and the Ottawa Senators broke a record when players from both teams combined for a stunning 419 penalty minutes. Most of the minutes were meted out during the course of five separate fights in the game's closing minutes. Sixteen players were ejected from the game.

Were the players embarrassed about violating the NHL's strict rules against fighting? "It was exciting for hockey and for our fans," Flyers goalie Robert Esche said following the game.

So is fighting really outside the rules of hockey? And if not, can hockey players still be sued for hitting each other with their gloves off? The answer is, "Um, sometimes."

With only a couple of minutes left in a March 8 game against the Colorado Avalanche, Todd Bertuzzi of the home-team Vancouver Canucks skated up behind Av Steve Moore and punched him in the side of the head. Then, as the men fell, Bertuzzi drove Moore's head into the ice. The impact broke Moore's neck, and he sustained other injuries. His hockey career remains uncertain.

Two weeks ago, Vancouver prosecutors charged Bertuzzi with assault -- the same thing he'd be charged with if he mugged someone at the mall. Despite this, it's not at all clear that he'll be convicted.

Beginning in 1969, at least a half-dozen assault cases have been filed against NHL players for fighting. The verdicts have left behind a muddy trail. About half the hockey players have been cleared of charges. Generally speaking, those convicted were the fighters whose approach was so grossly unfair -- sucker punches, cheap shots, stick attacks, etc. -- that the courts simply couldn't ignore them.

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