In 1999, on Saturday, January 16^th, Mike Tyson made a successful return to the professional boxing arena. In the fifth round of the heavyweight fight, he was able to score a vicious knock out of his opponent Francois Botha. As Mr. Botha laid on the floor, the fans in the crowd at the MGM Grand cheered wildly. The reason for this seemingly endless cheering was that the individuals in the crowd got exactly what they wanted. Although a few individuals in the crowd that night truly appreciated Mr. Tyson's skill as a professional boxer, most of those in attendance were hoping to see Mr. Tyson beat Mr. Botha with such force and power that Mr. Botha would not be able to get off the canvas before the celebrated count of ten.

Sometime after the fight, my overly curious twelve year old nephew asked me why Mr. Tyson was allowed to hurt the other man without getting in some sort of trouble. Additionally, he asked about Mr. Tyson's now infamous June 28^th, 1997 fight, during which he bit the ear of his opponent Evander Holyfield. Although this was a simple question, I knew the legal explanation was a bit too much for my nephew to digest. In order to provide an explanation, I would first have to determine what scope of conduct had Mr. Holyfield and Mr. Botha consented to or which risks had they assumed when they stepped into the ring with Mr. Tyson.

In the past, an individual who was injured as a result of his participation in a professional sport was denied redress. This traditional analysis focused on the principles of consent and assumption of risk. The theory of consent is based upon the premise that an individual consents to a certain scope of conduct. Similarly, the theory of assumption of risk is based upon the premise that an athlete assumes the risks of the contact in which he engages during professional competition. Accordingly under the traditional analysis, if an athlete is injured while participating in an event there is no actionable claim.

The application of the traditional rule is clearly illustrated in the case of Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev'd, 601 F.2d 516 (10th Cir. 1979), cert. denied, 444 U.S. 931 (1979). In Hackbart, an injury occurred during a professional football game between the Cincinnati Bengals and the Denver Broncos. The Broncos' defensive back, Dale Hackbart, was the recipient of an injury caused by Cincinnati's offensive back, Charles "Booby" Clark. According to the court record, acting out of frustration and in clear violation of the rules enacted by the National Football League, Mr. Clark stepped forward and struck a blow with his right forearm to the back of the kneeling Hackbart's head and neck with sufficient force to cause both players to fall to the ground. After the incident, both players returned to the sideline of his respective team. Although no protests were filed by either player and no fouls were called, the game film clearly showed that the incident had occurred. Mr. Hackbart later felt great pain and, after seeing a doctor, learned that he had a serious neck fracture.

In Hackbart, the trial court ruled that intentional injuries incurred during a game should be outside the framework of the law. 435 F. Supp. at 358. Applying the assumption of risk doctrine, the court explained that acts of violence and brutality were foreseeable. Id. at 356. Discussing the aspects of the game, the court noted that violent physical behavior is an obvious characteristic of professional football. Id. at 354-355. Moreover, when an individual puts on his equipment every Sunday, he is aware of and assumes the risks of certain things including: disabling injuries are common occurrences in each contest; professional football players are conditioned and expected to play through pain and injury; and that play is highlighted by extreme aggressiveness and reckless abandonment. Id. Additionally, the court stressed that the physical intensity of the competition made it difficult for the participants to control their anger and that fights and confrontations were a normal and expected part of the game. Id. Reasoning that incidents such as the one that occurred between Hackbart and Clark were foreseeable in professional football, the court asserted that the plaintiff assumed the risk and therefore was denied any recovery. Id. at 356.

In addition to the assumption of risk discussion, the trial court pointed out that any implication of tort law would place unreasonable impediments and restraints on the activity. 435 F. Supp. at 358. Furthermore, the judge suggested that the courts are ill-suited to decide different social questions and to determine what is an acceptable level of conduct on what is much like a battlefield. Id. Essentially, the trial court's decision in the Hackbart case concluded that any act of violence is foreseeable and thus non-actionable.

Understanding that its decision could end the possibility of the existence of tort remedies available to athletes while they engage in participation in sports, the Court of Appeals for the Tenth Circuit addressed the issue of whether in a professional football game an injury which is inflicted by one professional football on another can give rise to liability in tort and if so when. 601 F.2d 516 (10^th Cir. 1979), cert. denied, 444 U.S. 931 (1979). The court explained that by enacting the general rules of the game which prohibit the very conduct which was present, the league undoubtedly intended to establish boundaries which would offer protection to the individuals who choose to compete in this violent game. Id. at 520. Additionally, the court stressed that the trial court was incorrect suggesting that the only possible remedy available for a person who has been the victim of an unlawful attack would be retaliation. Id. Therefore, the court reversed the trial court and stated that "there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it." Id.

Essentially, the Court of Appeals' Hackbart decision established that in certain situations an individual who is injured as a result of his competing in a sport will have a viable claim. The U.S. Supreme Court declined to review the Court of Appeals' decision. Although it may not have been clear to the court at the time the decision was rendered, the Tenth Circuit's decision provided an important means of control over the problems which have since accompanied the growth and development of sports industry in our country.

Sports are no longer played as they were fifty years ago. The sports industry has become a powerful economical enterprise which emphasizes winning. Because of the overwhelming emphasis which is placed on winning, the individuals who participate realize that it no longer matters how you play the game but what matters if you win or lose. The economic incentive to win forces players to develop a win at all cost attitude. Players no longer play simply for the love of the game, but rather play for the tremendous amount of wealth that can be attained by winning. Although the commercialization of sports was not a major factor in the Hackbart decision, the increase likelihood of violence caused by the dramatic change in the overall attitude of professional athletes cannot be overlooked when deciding when to allow recovery for an injury received during a professional sporting event.

After establishing that professional sports are not outside the reach of judicial scrutiny, the question becomes what is the scope of conduct a player consents to through his voluntary participation. Some suggest that the conduct to which a participant consents is established by the specific enacted rules of the particular sport. Under this proposal, an infraction of the rules would be consented to because it is reasonable to believe that every rule will be broken at some time. For example, an injury sustained during a hockey fight would not be actionable because there is a specific rule that prohibits fighting. Although the "rules of the game" theory presents a recognizable scope of conduct, it does not create a broad enough category of conduct which has been consented to by those who participate on a professional level.

A more liberal interpretation expands the "rules of the game" theory and maintains that the scope of consent includes contacts which are permitted by the rules as well as the general customs of the game. Restatement (Second) of Torts §50 (1965)posits that by participating in an event one consents to those contacts permitted by the rules of the game but also those generally within the normal customs of the game. This theory allows a broader scope of conduct then the "rules of the game" theory. An example of this would be a baseball pitcher hitting a batsman. Although there is no specific rule against throwing at a batsman, it is a custom of the game and therefore would be considered as consented to by all those who decide to participate.

Critics argue that the application of tort to professional athletics place an unreasonable restraint on the athletes who are participating in these arenas. They suggest by creating an unreasonable impediment, the law will force athletes to compete at a step below the ordinary level. With the commercialization of the game dramatically changing the attitude of the players, it is necessary to draw the line between what is fair play and what is illegal. Most of what occurs in professional athletics can be categorized as fair play, however there are times when an athlete crosses the line and engages in some act without any competitive purpose. Because there is a possibility of these incidents occurring, we need to establish some reasonable level of conduct that will discourage athletes from engaging in violence on the playing field. Society needs to realize that there is a monumental difference between throwing at a batsman who is taking away the inside part of the plate and bitting the ear of your opponent during a boxing match or strangling your coach who chastises you because you had given your best effort during a shooting drill. Unfortunately, these incidents do occur and with the change in the attitude of athletes there is no indication that we have seen the last such incident.

In order to get an understanding of what level of conduct you think is reasonable, I have described various real life and hypothetical scenarios on a Comment Form. Please read the descriptions on the Comment Form and e-mail it back to me indicating whether you think the conduct crosses the line of fair play and if it does whether the athlete should have legal liability for the misconduct. Additionally, feel free to make any general comments about the courts' analyses of the issues.

If you have an opinion on these issues, please write to us and let us know.

Last Updated February, 1999

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