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,
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.