He Shoots, He Sues

Mark Andresen

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.

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.

The conclusion? Most fighting in hockey is okay. If a player wants to avoid a jury pool, he should at least try to make it look fair.

Other sports may not sanction on-field combat as obviously as hockey does. Even so, many still have unwritten codes of conduct that players routinely use to hurt, intimidate or humiliate each other. In basketball, the high-elbow jostling under the basket can resemble a wrestling match more than a game of hoops. Football players regularly throw out the rulebook when they abuse each other at the bottom of pile-ups following a play, gouging eyes, punching faces, kicking heads.

Ironically, the more such behavior occurs, the less likely a sport is to incur tangles with judges. Or, put another way, the more brutal the sport, the more forgiving the lawyers.

When Kermit Washington of the Los Angeles Lakers blasted the Houston Rockets' Rudy Tomjanovich with a straight right hand that almost killed him in a 1977 basketball game, Tomjanovich had no trouble squeezing a $2 million settlement out of the Lakers. Near-death experiences are not supposed to be part of basketball.

In contrast, while Mike Tyson was fined $3 million after biting off Evander Holyfield's ear during a 1997 bout, he escaped legal entanglements. After all, when the goal of a sport is hurting someone, participants should have a reasonable expectation of getting hurt -- even if that means getting chomped on the lobe by a psychopath instead of absorbing a left hook.

Of course, not all sports involve contact -- or at least they aren't supposed to. What about those activities in which injuries are not anticipated? There the judicial standard is lower. Nevertheless, all sports involve motion; many require projectiles. Mix the two together, and accidents happen.

One crucial distinction that can make the difference between an apology and a subpoena is intent. Two years ago, a Wichita State baseball pitcher, Ben Christensen, released a fastball during warm-up that hit an opponent in the eye. Unfortunately for Christensen, the batter, a then-promising major-league prospect named Anthony Molena, was standing nowhere near home plate. He was a good two dozen feet away, practicing his swing.

Christensen claimed the errant throw was an accident -- the ball simply got away from him. Stray pitches have done damage before without attracting attorneys. Yet Molena (and several witnesses) contended the pitcher deliberately tried to hit him in an effort to influence the outcome of the game (Wichita State lost anyway). Molena's damaged vision may imperil his career. A court will decide the pending case.

But what if Christensen did intend to throw a baseball at Molena's head? That doesn't necessarily make it a crime. In fact, it happens all the time in baseball. It's called a brush-back pitch -- a high-velocity attempt to convince a batter to stop crowding the plate. Occasionally, one connects.

Yet most judges (at least those who follow baseball) would be reluctant to classify a beanball -- even one that causes injury -- as an assault. The difference, once again, is expectations: Getting a baseball thrown at one's head while in the batter's box is one thing. Getting thrown at in the on-deck circle is quite another.

So, then: Athletes involved in non-contact sports who play by the rules can reasonably expect to avoid legal suits, right? Actually, no. Personal-injury lawyers have also raised the question of whether merely aggressive play is always legal play.

Ray Passantino, a high school junior in a New York City school in the early 1970s, was on third base when his coach gave the sign for a suicide squeeze. The play called for Passantino to break for home as soon the pitcher released the ball. According to the plan, the batter would bunt and Passantino would score as the infielders scrambled for the ball.

The batter missed, however, and so the catcher was waiting with the ball for Passantino at home plate. The two collided; Passantino never walked again. Passantino sued his coach and the board of education, claiming that he was motivated to ram the catcher after his coach had praised him for doing it during a previous game. Even though the suicide squeeze play is an acknowledged part of baseball -- and collisions at home plate occur all the time -- Passantino was eventually awarded $1 million.  

In addition to intent, the other standard sports-injury lawyers consider when contemplating a lawsuit is negligence. That is, did the athlete play the game so incorrectly that he endangered others? Consider the golfer who fails to wait for the preceding foursome to exit the green before he drives toward them. A serious knock on the noggin could invite legal action. Out-of-control skiers have been facing the legal music for twenty years -- although it was only in 2001 that the first schusser was convicted of homicide for skiing badly enough to kill someone.

Once again, however, even negligence can be a squirrelly judgment call. Hunters go into the woods expecting to shoot at animals, not get shot at themselves. Yet hunting accidents occur hundreds of times each fall. A handful of them are fatal. How do prosecutors separate mistakes from manslaughter?

This past fall, Gerald Holverson, a black-powder hunter from Wisconsin, was stalking elk outside of Steamboat Springs with his friend Douglas Jones. Jones mistook his friend for an animal and shot him; Holverson died soon after. A month later, Routt County prosecutors charged Jones with criminally negligent homicide. Jones may not have intended to kill his buddy, the prosecutor said. But he had violated a central tenet of hunting: Make sure you know what you're shooting at.

In this case, the consequences were the key. If Jones had merely broken his hunting partner's beer bottle with a bad shot, the DA probably wouldn't have pressed charges. Killing someone, of course, is a different matter.

While the past three decades have shown that there is some room for torts in sports, there is a danger in mixing the two. The appeal of athletics lies in its unpredictability; we step onto fields precisely because we don't know what will happen next. Laws, which seek strict accountability, can work at cross purposes with this.

Sports played with blame and without risk are drab affairs and miss the point of the contest. Holverson's family seems to grasp this, too. Lawyers familiar with the case say his family has urged prosecutors not to pursue the case against Jones, who must be in his own private hell. When games are played, sometimes an accident is just an accident.

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