“Bountygate” and the New Orleans Saints: A Modern Hackbart?

I teach college-level courses in business law, and as part of this blog I would like to share techniques I use to engage my students in classroom discussions.  One of my favorite techniques is to first describe a historical case.  Then I bring up a modern case with similar facts or legal issues and we look at the two cases side-by-side.  It’s my abbreviated version of an approach taken by many law school casebooks, which present a chronological series of decisions and examine trends in the case law.  The historical case is usually one of the famous cases I remember from law school — for example, White v. Samsung Electronics America, Inc. (publicity rights), Sherwood v. Walker (mutual mistake), or Hadley v. Baxendale (consequential damages).  I then pick a modern case with a subject I think would appeal to my students (often involving sports, music, social media, smartphones, celebrities, or just lots and lots of cash).  For White v. Samsung, we look at Kardashian v. The Gap.    For Sherwood v. Walker, the case of the BigLaw partner’s divorce settlement involving a Madoff account. And for Hadley v. Baxendale, Perini Corp. v. Greate Bay Hotel & Casino, Inc.

Sometimes the old and new cases turn out differently, and we can explore how and why attitudes towards a certain legal principle have changed over the years.  Sometimes the cases have similar results, and we can discuss how, even though society and technology change over time, judges still seek to apply the basic principles of law found in case law precedent.

Hackbart v. Cincinnati Bengals, Inc. is a famous torts case where a football player (Dale Hackbart) was severely injured after an intentional hit by an opponent (Charles “Booby” Clark).  Clark hit Hackbart, out of anger,  just after a play on the field had ended.  The question before the court — was Clark (and the Bengals, through respondeat superior) liable for battery?  Should the law recognize a battery claim from a willing participant in a rough contact sport such as football?

In class, I introduce this topic with a hypothetical:  Mike Tyson and Evander Holyfield are having a boxing match in Madison Square Garden.  The opening bell goes off and Tyson punches Holyfield.  Holyfield calls timeout and sues Tyson for battery.  Does Holyfield have a good case?

The students quickly say that it is ridiculous to think a boxer could sue another for battery, but I try to get them to articulate why.  The students then describe, in layman’s terms, the legal theory of implied consent.  Holyfield knew he was about to engage in a rough sport, and, by stepping in the ring, he consented to Tyson’s harmful or offensive touchings.  (And now perhaps there are law school gunners reading this and shouting:  “Actually, it depends on whether the boxing match was legal!  Hudson v. Craft!!  Ok, calm down – I teach undergraduates, not law students, and so I gloss over a few nuances).

Anyway, Tyson’s punch isn’t actionable battery.  But what about the famous “Bite Fight?” Most of my students have heard of this, even though they couldn’t have been more than five years old at the time.  In this real-life match, Tyson not only punched Holyfield, he bit him (twice) — an illegal move.  Would Holyfield have a cause of action on those facts?  Maybe.  Students generally do not think that Holyfield gave implied consent to being bitten.  Now, Holyfield didn’t actually sue Tyson after the Bite Fight, so we will never know how it may have gone in court.  But this tees up our discussion of Hackbart.

My students have never heard of Mr. Hackbart.  Neither had I, until law school.  He was a defensive back for the Broncos in the 60s and early 70s.  He was also plaintiff in a lawsuit arising out of events during a 1973 game against the Bengals.  Clark was a Bengals running back.  After the Bengals attempted a pass and it was intercepted, Hackbart, whose teammate had intercepted the pass, attempted to block Clark (who was now on defense) and Hackbart ended up on the ground.  Hackbart went up on a knee and watched his teammate run downfield with the ball.  The play ended.  Then Clark, in frustration, hit Hackbart on the back of the helmet with a forearm.  The blow fractured Hackbart’s neck, which required surgery.  Hackbart sued for damages.

A trial court found no tort liability for Clark or the Bengals, holding it would be unreasonable to allow tort liability for hits in footballl – even a “late hit” that was not permitted under the rules of the game.  However, an appeals court reversed, finding that conduct prohibited by the rules of a game could be seen as tortious, despite the inherent roughness of the game.  The case was sent back to the trial court on remand and later was settled.

Ok, I’m ready to talk about the Saints now.  Call it Bountygate if you must. From the years 2009 to 2011, members of the Saints’ defensive team allegedly ran an illegal bonus system where players received cash rewards for injuring opposing players, particularly for injuries to high-profile opponents such as rival quarterbacks.  The NFL investigated and found the allegations to be true, imposing penalties and placing substantial blame upon Saints’ defensive coordinator Gregg Williams.

The Saints’ bounty program is a subject many of my students know well, so I let them describe the issue.  Then I ask, what if one of the Saints’ opponents during that time period had been severely injured?  Could he sue for battery?  Is there an defense of implied consent?  How might a court look at the precedent set by Hackbart?

After the discovery of the Saints bounty program, several lawsuits were initiated. There was a challenge to the NFL commissioner’s decision.  A defamation lawsuit by one of the accused Saints players.  More recently, a lawsuit against the NFL by the NFL Player’s Union, even a purported class-action led by an angry Saints fan.

Just in the past few days, however, came the lawsuit I was waiting for –  an injured player suing Williams for injuries allegedly resulting from a bounty program.  But there’s a twist — this lawsuit is not about the Saints’ bounty program, but a prior bounty program Williams allegedly ran while he was defensive coordinator of the Washington Redskins.  Former New York Giants linebacker Barrett Green claims he was the victim of a “cheap shot” by Redskins tight end Robert Royal, and that Royal made the hit with the intent to injure Green and collect a cash reward under a program run by Williams.  Green is suing Royal, Willliams, and the Skins.

From what I’ve read about Green’s case, it may not be ideal.  Royal was playing offense at the time of the hit, which means he would not have been under Williams’ direct authority.  The incident was from 2004, so reliable witness testimony may be difficult to come by.  There will probably be a fight over whether the statute of limitations has run.  And the NFL has not found fault or issued penalties for the alleged Redskins’ bounty program, as it has with the Saints’.  But the Hackbart precedent may be enough to get Green’s case into discovery, which could encourage a settlement by the Redskins (who, as a “deep pocket,” are probably the defendant Green is really going after).  Williams would likely be loathe to settle, fearing a “domino effect” of lawsuits from opponents of the Saints who could claim he was responsible for their injuries.

Does the aggressor’s intent matter in determining whether a football hit is within the rules of the game?  Do football players give implied consent to “cheap shots?”  Is Hackbart persuasive precedent for a case against the Redskins/Saints?  Or are the facts too different?

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