Teams Could Be Held Liable for Injuries Traced to Bounties

The New Orleans Saints will almost certainly receive fines, suspensions and/or the loss of draft picks because of the bounty system administered by the former defensive coordinator Gregg Williams that encouraged Saints players to injure opponents — and for the apparent cover-up by team officials that followed. But that could be just the beginning of their punishment. According to two sports law scholars, the team, Williams and individual players could be held liable in court if an opponent can prove that a member of the Saints injured him on a play that is outside the norm for football and that the Saints player acted with reckless disregard for the opponent’s safety. “As a general rule, those who participate in sports assume the inherent risk of injury therein,” said Matt Mitten, the director of the National Sports Law Institute at Marquette University Law School. “You break your arm? Suffer concussion? Broken leg? But what most courts have held is you do not assume the risk of an intentional or recklessly caused injury. Contact is an inherent element of N.F.L. football; it’s not enough just to contact someone. “I would see something as a bounty, where you’re intending to injure someone so he’s knocked out of the game, or reckless, the deliberate disregard of a high probability of harm — those are the types of situations where the courts have said: ‘That’s not a risk that people assume. There is potential liability to those who suffer injury.’ ” Although it is rare to see criminal charges for on-field conduct, the precedent-setting case for a civil lawsuit was decided in 1979. In a game six years earlier, the former Denver Broncos defensive back Dale Hackbart was injured when the Cincinnati Bengals’ Boobie Clark hit Hackbart with a forearm to the back of the neck after an interception. No flag was thrown, but Hackbart was later found to have fractured his neck. The trial court ruled that a player cannot be held responsible for violent conduct on the field. But the appeals court reversed that decision, determining that players — and potentially teams — could be held responsible if they act with reckless disregard for opponents’ safety. “The question is, what would be considered an ordinary part of the game?” said Gabe Feldman, the director of the sports law program at Tulane University Law School. “The real question is: Do players assume the risk of violent conduct with intent to injure that is motivated by a bounty? But if you add in conspiracy — are coach-led conspiracies to injure part of the game? And if they’re not, how do you tell the difference between the two? How do you know if it’s just a normal hit versus a hard hit delivered for $1,500?” Feldman and Mitten agree that it would be difficult to prove the intent of a Saints player who injured an opponent. But the N.F.L. said that it had reviewed 50,000 pages of evidence, including e-mails, that documented the bounty system, information that could potentially be used as evidence in a lawsuit, Mitten said. That evidence could also help a player go after the Saints. “If it was a lawsuit by an injured player against the player who injured him, then he may be able to hold that player’s club liable,” Mitten said. “Employers are liable for employees’ torts committed within the scope of employment. If you could show the coaching staff directed this, the club could be liable. “Pretty clearly, it would be tough to hold the league liable unless you could show they knew this was going on and failed to take any effective steps to stop it, which is what they are doing now.” Still, the reaction of players since the N.F.L. revealed its investigation — including those of Kurt Warner and Brett Favre, who were named by the league as targets of the Saints — indicates that most believe the incentives are a routine part of the game. But Feldman points to a potential parallel with the concussion-related lawsuits filed against the N.F.L. in recent months. Those suits were first brought by lower-profile players before growing to include bigger names. Feldman and Mitten wonder if a player, perhaps already forced to retire because of injury, perhaps unhappy with the care he is receiving, could come forward. “I’m not sure players want to bring this case,” Feldman said. “But certainly there is some potential legal exposure.”