When a hit becomes a ‘hit’

“It was a ter­ri­ble mis­take, and we knew it was wrong while we were doing it.”

— Gregg Williams,

Saint Defen­sive Coordinator

“This is a sem­i­nal moment in the cul­ture change we have to make.”

— Roger Goodell,

NFL Com­mis­sioner

March Mad­ness is under way. Base­ball sea­son begins in two weeks. Clearly, it must be time for a col­umn about the law of … foot­ball? Indeed, foot­ball is the sport mak­ing legal news right now both for the penal­ties it has just imposed on teams for vio­la­tions of a non-existent salary cap in 2010 and, even more so, for the penal­ties that it is about to impose on teams for run­ning a “bounty” sys­tem. The lat­ter is more crit­i­cal, and, though law enforce­ment offi­cials in cities like New Orleans, Buf­falo and Wash­ing­ton have already declined to become involved, it is the lat­ter that also likely crossed the line into being criminal.

Indeed, actions on the field, dia­mond and ice have pre­vi­ously resulted in crim­i­nal charges against pro­fes­sional ath­letes. In 2008 minor league pitcher Julio Castillo of the Peo­ria Cubs was charged with felo­nious assault after rock­et­ing a base­ball into the crowd dur­ing a brawl in Day­ton. Castillo was con­victed the fol­low­ing year and sen­tenced to 30 days in jail.

Castillo’s actions were more clearly crim­i­nal, how­ever, because they went out­side the bounds of the play­ing field and involved a fan. Mud­dier yet is the line between accept­able con­tact on the field of play and con­tact that crosses into crim­i­nal activ­ity. At its most basic level, any con­tact sport assumes that there will be con­duct that is accept­able within the con­fines of the sport but would not be accept­able oth­er­wise. Peo­ple who are par­tic­i­pat­ing in the sport do so know­ing that the con­tact is likely and accept­ing the risk of injury or harm that comes with the con­tact as part of their par­tic­i­pa­tion in the sport.

When that con­tact crosses the line into behav­ior that exceeds what the sport con­sid­ers accept­able, then crim­i­nal charges some­times ensue. This has hap­pened most often in hockey and the most famous inci­dent came in a 2004 game between the Van­cou­ver Canucks and the Col­orado Avalanche. Van­cou­ver was upset about a hit by Col­orado cen­ter Steve Moore that had injured a Van­cou­ver player and repeat­edly went after Moore. Late in the game, which was a blowout win for Col­orado, Todd Bertuzzi grabbed Moore’s jer­sey from behind, punched him in the back of the head and then fell on him. Moore never played hockey again and Bertuzzi was con­victed of assault.

Foot­ball, like hockey, is a full con­tact sport. It is played by very large men who are hand­somely paid to hit each other and hit each other hard. Con­tact that occurs within the con­fines of the rules is what makes the game com­pet­i­tive and enjoy­able for the fans watch­ing it. Even in a vio­lent sport like foot­ball there are sit­u­a­tions in which a player can cross the line of assumed risk. If a line­backer brought a golf club onto the field and hit a run­ning back with it, that line­backer could cer­tainly not claim that his actions were per­mis­si­ble sim­ply because it was his job to stop the run­ning back. His actions would con­sti­tute crim­i­nal assault.

Last week the NFL revealed that it had proof that the New Orleans Saints, under the direc­tion of defen­sive coor­di­na­tor Gregg Williams, had run a ‘bounty sys­tem’ in which other play­ers and, indeed defen­sive coaches includ­ing Williams, pro­vided sig­nif­i­cant cash bonuses– not for mak­ing good, legal hits, but specif­i­cally for injur­ing oppos­ing play­ers. Sports Illus­trated reported that on-field micro­phones recorded play­ers cel­e­brat­ing injuries and shout­ing about get­ting paid for caus­ing them.

Most states’ crim­i­nal codes make it a crime to pay a per­son to cause injury to some­one else. Nearly all of them make it a crime for two peo­ple to plot the com­mis­sion of a future crim­i­nal act if they then take steps in fur­ther­ance of that act. The Saints were fined on mul­ti­ple occa­sions for ille­gal hits– hits that the NFL had out­lawed specif­i­cally because they were designed to cause injury or car­ried a high like­li­hood of injur­ing someone.

The poten­tial lia­bil­ity for play­ers and coaches in the bounty scan­dal extends beyond crim­i­nal expo­sure. The pay­ments to play­ers were not reported com­pen­sa­tion and no taxes were paid on them. Each player receiv­ing such a bonus and the teams pay­ing them are there­fore liable to both civil and crim­i­nal penal­ties for fal­si­fy­ing tax returns. In addi­tion, the pay­ments were in excess of com­pen­sa­tion and salary caps set by the col­lec­tive bar­gain­ing agree­ment and there­fore vio­late that nego­ti­ated agree­ment between the play­ers and the owners.

It appears likely at this time that pros­e­cu­tors in NFL cities will allow the league to dole out severe pun­ish­ments in this scan­dal and avoid involv­ing the crim­i­nal jus­tice sys­tem. In that, the play­ers are for­tu­nate because while an NFL quar­ter­back assumes the risk of get­ting hit, and get­ting hit hard, he does not assume the risk that play­ers will inten­tion­ally use ille­gal hits to cause severe, poten­tially career-threatening injury in order to col­lect an imper­mis­si­ble bounty.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Mar 16 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.