Last week, in The Death of Civil Justice, I mentioned Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979), in which U.S. District Judge Matsch wrestled with the Tenth Circuit over the role of the courts in oversight of on-field sport misconduct (think cousin problem, Deflate-gate). Hackbart involved a strike on the body of Dale Hackbart (later an advocate for male breast cancer awareness) by opponent Charles "Boobie" Clark (since deceased) in a Bengals-Broncos clash in the early 1970s. Judge Matsch would have left the matter within regulation by the sport, but the Tenth Circuit thought that the common law of recklessness afforded a backstop in tort to ensure that the rules of civilized society do follow the players onto the field in some fashion, as an Illinois appellate court once put it.
Well just this weekend a similar, yet curiously different, after-the-whistle scenario unfolded in an American football game between Florida Gators (I know you were watching, Prof. Andrew McClurg)
wide receiver Brandon Powell and Tennessee Vols defensive back Rashaan Gaulden. Sideline cameras were not on them at the time, but aerial footage shows what appears to be Powell throwing a punch at Gaulden and (intentionally?) not connecting, and Gaulden hitting the ground (show?). The refs took the incident seriously enough that after much deliberation, they ejected Powell.
CBS commentators were initially harsh on Powell, angry and forlorn as he walked to the locker room just before a commercial break. But after the break, they had changed their tune and apologized to him, turning their venom on the refs. One commentator took the opportunity to impugn soccer (really necessary?) with reference to Gaulden's dramatic performance, and another invoked Greg Louganis in an awkward metaphor for "taking a dive." The commentary itself makes the clip worth watching, and at least at the time of this writing, it's available here: "Flop of the Year."
The case is easier than Hackbart's, as he suffered debilitating injury that contributed to the end of his athletic career. The problem in Hackbart was one of consent: What exactly does an NFL player consent to? It can't be that the consent analysis requires a player to consent to the precise nature of collision that might occur in every play. But it can't be either that a player does not consent to a scope of possible violence, going even beyond the rules of the game but within the contemplation of penalty assessment. Consent must be to some hard-to-define cloud of possible eventualities, not too specific, not too broad, and none too pleasant.
Consent could come in to play in arguable assault--causing apprehension in another without resulting contact--just as well as battery. But assault, if even that was Gaulden's intent, does not seem so urgently to invite the courts to second-guess governance within the sport, as a policy matter.
Anyway that's just a thought experiment, as no one is suing anyone. Players are at least that tough. And concussion-gate notwithstanding, football self-regulation has come a long way since Billy "The Gun" Van Goff.
