Assumption of Risk and Football
posted by Gerard Magliocca
The NCAA headquarters is across the street from my school. In the lobby, you will find a life-size sculpture of the “flying wedge,” which was a popular football play at the turn of the 20th century. Basically, all of the offensive linemen linked arms and the running back just followed behind them. It worked really well, except that lots of linebackers ended up with broken necks after being hit by the full force of many men. Indeed, there were so many fatalities caused by the flying wedge that college football was on the verge of being abolished. That’s why the NCAA was formed. Teddy Roosevelt, convinced that games like football were necessary to inspire manly virtues, got a group of leading college presidents (including Woodrow Wilson at Princeton) together and urged them to stave off these calls by forming an athletic association that would promulgate limited safety rules (such as banning the flying wedge).
I bring this up because of the recent controversy over concussions and brain injuries in football, which I used as the basis for a question on my Torts exam today. A principle of assumption of risk doctrine, as it relates to voluntary participation in recreational events, is that an activity can’t be so harmful as to violate public policy. Put another way, knowing consent is not enough — that’s why dueling is illegal. At what point will the evidence about brain injuries from repeated blows to the head, especially if causation can be established for injuries to young kids or high-school players, raise this problem for football? I don’t mean that we should abolish football, but we might get to a point where the current way it is played may have to change. After all, professional boxing used to be bare-knuckles. Then it required gloves. It used to be fifteen rounds. Then that got reduced to twelve. I’m sure that folks who liked boxing the way it was (or the flying wedge, for that matter) thought that more safety rules would ruin the sport. I don’t think they did, though, and many lives were saved as a result.
December 14, 2009 at 7:58 am
Posted in: Tort Law
Print This Post
Responses (4)
DCLawyer - December 14, 2009 at 12:13 pm
I would think that this is something closely linked with our perception of (a) how valuable the activity is (given the $$$ involved, pretty significant) and (b) how easy it is to make significant changes that won’t impair the activity’s value. The more significant (in terms of reduction of harm) and less likely to impair a change is, the more likely we are to see a court use the assumption of risk doctrine.
Let me give you a long standing one. Baseball fans assume the risk of being hit by a ball or flying bat. This has been the rule for 100 years or so. But we also know that baseball has remediated that risk where reasonable (e.g. the net behind home plate). Failing to put up a backstop would, I think, be seen vitiating the assumption of risk as its an easy fix with zero impact on how the game is played.
Now, let’s consider maple bats. Maple bats strike me as a fairly new hazard. They’ve only come into widespread use in the past decade or so – these aren’t the tools of Babe Ruth, Hank Greenberg or even Mickey Mantle. However, they are considered much more likely to break, and in a manner that causes splintering, than traditional bats.
If I were a judge deciding a lawsuit brought by a fan injured by a maple bat, I think I could be persuaded to waive the assumption of risk doctrine, because I think it’s premised on the notion that the league has done what it reasonable can to mitigate, which is NOT the case with maple bats.
http://sports.yahoo.com/mlb/news?slug=jp-bats052908
http://bleacherreport.com/articles/26205-maple-bats-major-league-baseball-looks-the-other-way
Yet, MLB continues to look the other way, mainly because the extra offense is perceived as a crowd pleaser.
Daniel S. Goldberg - December 15, 2009 at 8:42 am
Gerard,
Two points, both of which I develop in more detail here. First, it seems relevant to any assessment of AOR the extensive conflicts-of-interest that attend health care arrangements for professional football players (which is where most of the activity is right now regarding mild traumatic brain injury ["mTBI"]). Football players may or may not assume the risk, but insofar as tort law is unavoidably a policy inquiry — ‘what kinds of injuries do we want to permit compensation for’ — it seems relevant to me to the question of whether mTBI is compensable that the conflicts-of-interest are rampant and very likely have caused or exacerbated harm to football players.
Second point also goes to the policy analysis, which is that the resources made available in this country for long-term care are minimal. Of course, this is exactly the kind of care which players suffering from neuropathology caused by repeated mTBI are likely to need, which means a decision on whether to compensate players has significant social, not to mention normative, implications.
Fraud Guy - December 15, 2009 at 4:00 pm
IIRC, one of the researchers arguing about the concussions also explained that the addition of gloves made boxers more likely to receive concussions and other brain injuries because, while surface injuries are more likely, a boxer is more likely to swing at hard surfaces (head) with the protection of the gloves than without.
December 16 roundup - December 16, 2009 at 7:24 am
[...] Repetitive head injury: “Assumption of risk and football” [Magliocca, ConcurOp] [...]
Leave a Reply