Contact is Competitive, Assault is Not

Sports are inherently physical in nature. Football, basketball, soccer, and hockey are the first examples that come to mind when someone mentions a “contact sport.” The rules allow for contact, and it is a fundamental part of their game. However, the type of contact allowed is not always the one seen. It is common to see fights in sports, especially in hockey where it seems to be a normal part of the game. However, far too often there are actions taken by professional athletes with the intent of retaliation or injury against an opposing player. Whether it be Ndamukong Suh’s stomp, Grayson Allen’s tripping, Chase Utley’s slide into second, or most recently, Nikola Jokic’s shove on Markieff Morris, there is no place for this sort of behavior within sports. It crosses the line of competitive fire into reprehensible action with potential legal consequences.

The idea that one athlete could and would sue another is admittedly taboo. Fights and seemingly unnecessary physical altercations are usually written off as competition boiling over and heat of the moment situations. However, there is legal precedent for this. Hackbart v. Cincinnati Bengals Inc. is a case describing such a situation. Dale Hackbart, former NFL player for the Denver Broncos at the time, filed suit against an opposing player, Charles Clark, and Clark’s team, the Cincinnati Bengals. Hackbart was playing in a game against the Bengals when Charles Clark punched the back of Hackbart’s head and neck. Neither player complained to one another or the officials and returned to the sidelines. Hackbart sued Clark and the Bengals for injuries sustained as a result from the punch and the District Court’s initial ruling was in favor of Clark and the Bengals.

Their rationale was that football is an inherently violent sport and players assume the risk when agreeing to compete in the sport. However, the U.S. Court of Appeals for the 10th circuit reversed this decision and remanded the case for a new trial stating that while football is inherently violent, there are official NFL rules preventing this type of behavior (the unnecessary roughness rule that can lead to an ejection and possible suspension) meaning the scope of implied consent while playing football does not expand to physical violence outside of the field of play[1]. The Hackbart case was supported in Gauvin v. Clark, a case involving a hockey player hitting another player with the stick causing internal injuries and hospitalization.

The court concluded that “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct and that liability may result from injuries caused a player by reason of a breach of that duty”[2]. The rationale behind these decisions is a deterrent for players who are looking to retaliate on the field and escalate already unnecessary and reckless violent acts any further. Allowing litigation based on the aggressors negligently reckless conduct or intentional acts gives the victim an outlet to recover for damages sustained as a result.

Basketball also has rules against fighting in Section V-Conduct in the official NBA rulebook. “Fighting” is penalized by assessing a technical or flagrant foul which can result in ejection, suspension and a fine[3]. The existence of this rule in the NBA means that the recent Markieff Morris/Nikola Jokic situation could potentially end in a lawsuit against Jokic. Although unlikely to ever result in a suit, if Morris could prove damages based on the shove from Jokic, he could have a case. Morris did technically initiate the altercation with an elbow, but Jokic escalated it to a point of potential injury.

I am not advocating for stricter officiating or discouraging contact within sports, I enjoy a minor altercation, I think it can add to the passion of the game. However, there needs to be stronger punishment for players acting recklessly or intentionally. A suspension and fine are usually common and can work, but they are rarely substantial enough to create adequate deterrence for future actions (i.e., Jokic only received a one game suspension). I don’t think every fight should result in litigation, but it’s important that players understand the potential consequences of their actions. Contact and competitive flare is what makes sports intense and enjoyable, but potentially season or career ending injuries stemming from violent conduct is unacceptable and has no place in sports.

Evan Mattel is a 1L at Hofstra Law and a 1L Representative of the Sports and Entertainment Law Society. He can be found at @Evan_Mattel21 on Twitter.

[1] Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, (U.S. App. 1979) LEXIS 14111, [2] Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989) [3] “Rule No. 12: Fouls and Penalties.” RULE NO. 12: Fouls and Penalties, January 1, 98AD. https://official.nba.com/rule-no-12-fouls-and-penalties/#fightingfouls.