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Protecting the Shield and Its Players: A Proposal for Internally Addressing Intentionally Inflicted NFL Injuries

Protecting the Shield and Its Players: A Proposal for Internally Addressing Intentionally Inflicted NFL Injuries

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Published by: New England Law Review on Oct 23, 2012
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14
Protecting the Shield and Its Players: AProposal for Internally AddressingIntentionally Inflicted NFL Injuries
M
ARK
D.
 
S
ZAL
 
I
NTRODUCTION
 
njuries, accidentally inflicted or otherwise, have always been a part ofprofessional sports. Recent events in all four of the major professionalAmerican sports, however, have brought the subject of intentionalinjuries to the fore of sports and legal discussion once again. During theNational Hockey League playoffs on April 17, 2012, Phoenix Coyotes’forward Raffi Torres launched himself into the air and delivered a late hitto the head of Chicago Blackhawks’ star Marian Hossa, who was taken offof the ice on a stretcher. Based on the violence of the hit, severity of theinjury, and his history of other illegal on-ice conduct, Torres earned animmediate twenty-five game suspension from the League (later reduced totwenty-one games on appeal).
1
It is unclear whether the concussion Hossareceived will affect his future play.Five days later, in the penultimate game of the National BasketballAssociation regular season, Los Angeles Lakers’ forward Metta WorldPeace (
née
Ron Artest) threw a violent elbow to the head of Oklahoma CityThunder’s guard James Harden, dropping Harden to the court with aconcussion. World Peace was ejected from the game and suspended sevengames by the NBA, whose commissioner noted the “danger posed byviolent acts of this kind.”
2
Even baseball, not traditionally thought of as a
Associate, Bello Black & Welsh LLP; B.A., English and Philosophy, Boston College 1996; J.D.,New England Law | Boston 2006.
1
 
See
Kevin Allen,
Coyotes’ Raffi Torres Suspended 25 Games for Hossa Hit
 , USA T
ODAY
 (Apr. 21, 2012), http://www.usatoday.com/sports/hockey/nhl/story/2012-04-21/raffi-torres-suspension/54455286/1.
2
Cindy Boren,
 Metta World Peace Suspended Seven Games for Elbowing James Harden
 ,W
ASH
.
 
P
OST
(Apr. 25, 2012, 9:34 AM), http://www.washingtonpost.com/blogs/early-lead/post/metta-world-peace-suspended-seven-games-for-elbowing-jamesharden/2012/04/25/gIQAhCSkgT_blog.html.
I
 
2012
 
Protecting the Shield and Its Players
15
contact sport, has seen examples of intentional and potentially injuriousacts. On May 6, 2012, Philadelphia Phillies’ pitcher Cole Hamelsintentionally threw a pitch at Washington Nationals’ All-Star rookie BryceHarper, striking him in the small of the back. Harper was not injured,stealing home a few pitches later in fact; but Hamels justified hisadmittedly premeditated actions as a traditional form of indoctrinatingyoung players to the big leagues.
3
 The most widely discussed recent sports injury news, however, is the“Bounty Scandal” involving the New Orleans Saints of the NationalFootball League, dubbed “Bountygate.”
4
Beginning in 2009 upon thearrival of new defensive coordinator Gregg Williams, and continuingthrough the 2011 season, Saints’ defensive players allegedly maintained apool of money, funded by the players and in some instances Williamshimself, from which performance bonuses were paid for inflicting injurieson opposing players. Between twenty-two and twenty-seven Saints werealleged to have participated. Players would receive bonuses (typically$1,000) for “cart-offs,” a euphemism for an opposing player being taken offthe field on a cart or stretcher, and “knockouts,” where an opposing playerwas unable to return to the game after being hit.
5
Among the opposingplayers allegedly targeted were Minnesota Vikings’ quarterback BrettFavre, who was battered by the Saints’ defense in the 2009 NFCChampionship Game, and Arizona Cardinals’ quarterback Kurt Warner,who one week earlier was knocked out of the game briefly with a chestinjury. Favre returned the following season, his last in the NFL; Warnernever played again.When news of Bountygate first broke, Hall of Fame quarterback, ESPNanalyst, and lawyer Steve Young indicated that Saints’ opponents injured
3
 
See
Gabe Lacques,
Cole Hamels on Bryce Harper: ‘I was trying to hit him
 ,
USA
 
T
ODAY
 (May 6, 2012), http://content.usatoday.com/communities/dailypitch/post/2012/05/cole-hamels-bryce-harper-hit-by-pitch/1.
4
 
See, e.g.
 , Melissa Jacobs,
Gregg Williams Must be Banned
 , ESPNW (Mar. 5, 2012, 5:59PM), http://espn.go.com/espnw/commentary/7649400/former-new-orleans-saints-coordinator-gregg-williams-banned (stating that the Bountygate scandal is “the single biggest issue of [theNFL’s] time”); Ryan Riddle,
Ex-NFL Player Dishes on Bountygate Scandal, Roger Goodell’sPunishments
 , B
LEACHER
R
EPORT
(June 29, 2012) http://bleacherreport.com/articles/1233213-ex-nfl-player-dishes-on-bountygate-scandal-and-goodells-punishment (referencingBountygate as “the Saints’ highly publicized bounty scandal”); Brandon Winkler,
The NFL andTheir Inconsistency with “Bountygate” and Player Fines
 , R
ANT
S
PORTS
(Apr. 17, 2012, 4:48 PM),http://www.rantsports.com/new-orleans-saints/2012/04/17/the-nfl-and-their-inconsistency-with-bountygate-and-player-fines/ (referring to the Bountygate scandal as “arguably one of, ifnot
the
biggest controversies to ever hit the NFL”).
5
Toni Monkovic,
N.F.L.’s Full Report on Discipline for Saints
 , T
HE
F
IFTH
D
OWN
:
 
T
HE
N
EW
Y
ORK
T
IMES
N.F.L.
 
B
LOG
(Mar. 22, 2012),http://fifthdown.blogs.nytimes.com/2012/03/22/n-f-l-s-full-report-on-discipline-for-saints/.
 
16
New England Law Review On Remand
v. 47 | 14
during the past three seasons would have grounds for a lawsuit, stating, “ifI’m hurt against the Saints in the last couple years, I’m suing the Saints.”
6
 Other legal scholars have concurred with Young’s opinion.
7
Players bringing lawsuits in connection with injuries on the playing fields are fairlyrare occurrences, due in large part to the reluctance of courts to grant reliefas a result of a lower standard of care, affirmative defenses such asassumption of the risk and consent, and unwilling plaintiffs fearingostracism or retaliation.
8
This trend may be reversed in the coming yearswith respect to the NFL, however, primarily because of the confluence ofseveral commonalities in professional football today: concussions, a focuson player safety, and lawsuits.It was only in 2002 that an NFL player’s game-related brain injury wasfirst linked to a diagnosed case of dementia.
9
Now, as of July 2012, ninety-nine lawsuits involving concussions have been filed against the NFL andits teams, encompassing more than 2,600 former players.
10
A 2012 classaction filed by former players, which consolidated many of the lawsuits,accused the NFL of negligence and fraudulent concealment in “failing todisclose the true risks of repeated traumatic head impacts in NFL football,
6
Michael David Smith,
Steve Young Thinks Players Who Were Injured Should Sue theSaints
 , NBC
 
S
PORTS
P
RO
F
OOTBALL
T
ALK
(Mar. 5, 2012),http://profootballtalk.nbcsports.com/2012/03/05/steve-young-thinks-players-who-were-injured-should-sue-the-saints/.
7
 
See, e.g.
 ,
 
 Judy Battista,
Teams Could Be Held Liable for Injuries Traced to Bounties
 , N.Y.T
IMES
 , (Mar. 4, 2012), http://www.nytimes.com/2012/03/05/sports/football/nfl-bounties-could-lead-to-lawsuits.html?_r=0.
8
Chris J. Carlsen & Mathew Shane Walker,
The Sports Court: A Private System to DeterViolence in Professional Sports
 , 55 S. C
AL
.
 
L.
 
R
EV
. 399, 407-14 (1982).
9
 
See Legal Issues Relating to Football Head Injuries (Part I & II): Hearings Before the H.Comm. on the Judiciary
 , 111th Cong. 328 (2010) [hereinafter
Legal Issues Relating to Football HeadInjuries (Part II)
] (Testimony of Bennet I. Omalu, M.D., Co-Director, Brain Injury ResearchInstitute, W. Va. Univ.),
available at
http://judiciary.house.gov/hearings/printers/111th/111-82_53092.pdf. Doctor Bennet I. Omalu of the Brain Injury Research Institute discovered thefirst case of dementia in an NFL football player—which he named Chronic TraumaticEncephalopathy (“CTE”)—after performing an autopsy on the brain of Pittsburgh Steelers’Hall of Famer Mike Webster in 2002.
Id.
Since that time, debate has ensued after the suicidesof former NFL players cast light on the potential connection between head trauma and CTE.
See
Michael O’Keeffe,
Race to Study Seau’s Brain
 , N
EW
Y
ORK
D
AILY
N
EWS
(May 3, 2012),http://articles.nydailynews.com/2012-05-03/news/31560567_1_traumatic-encephalopathy-seau-family-brain-injury-research-institute. In the midst of this, while not accepting the causalconnection of concussions and brain injuries to dementia, the NFL has placed an increasedemphasis on player safety.
See Legal Issues Relating to Head Injuries (Part II)
 , 111th Cong. at 31-32, 35 (Statement of Roger Goodell, Comm’r, Nat’l Football League) (emphasizing the NFL’s“commitment to the safety and welfare of . . . those individuals who play our sport,” andconceding that head injuries “may play a role” in causing brain injuries).
10
Paul Anderson,
The Concussion Lawsuit Shuffle
 , NFL
 
C
ONCUSSION
L
ITIGATION
(July 3,2012), http://nflconcussionlitigation.com/?p=930.

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