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.