Can Professional Athletes in Contact Sports be Held Liable for On-Field Injuries?
Every Sunday, professional athletes in the National Football League (“NFL”) tackle, block, and run over one another with impunity. In a contact sport like football, injuries are common, but rarely result in any type of liability for the injury-causing players.1 Intuitively, this makes sense. Professional athletes in contact sports are participating in violent games where physical collisions are the norm. Allowing professional athletes to sue one another for doing what the sport requires makes little sense, and would likely curb the intensity of competition.2 But what happens when things go too far? Can a football player incur liability for an impermissible targeting foul where they initiate contact with their opponent’s head? What about a hockey player who body checks a player with their head down? To answer these questions, one must first understand how athletes participating in contact sports are shielded from liability.
As a general rule, athletes engaged in the “ordinary conduct” of a contact sport are not liable for resulting injuries.3 For example, a linebacker who breaks a running back’s arm while diving for a loose football will not be held liable, since the dive itself is an ordinary part of the game.4 Put differently, actions that are “inherent to a particular sport” and therefore foreseeable do not result in liability.5 This is largely because athletes only owe each other a limited duty of care while engaged in competitive sports, and assume certain risks during gameplay.6
This is not to say athletes have absolute immunity when they step on the field. A majority of jurisdictions have adopted the approach that injuries “arising out of an athletic event” are actionable when a co-participant acts recklessly.7 An athlete acts recklessly when their behavior falls outside of the “ordinary conduct” prescribed by their sport.8 In doing so, the athlete breaches the duty of care owed to co-participants.9 As one court put it, “[a] reckless disregard for the safety of other players cannot be excused.”10 Alternatively, liability can be predicated on intentional conduct in certain circumstances.11
What is considered “ordinary conduct” and recklessness is largely sport-specific.12 Activities considered “ordinary” in one sport may very well be reckless in another.13 For example, punching an opponent in the NFL is quite different than punching an opponent in the boxing ring.
Returning to the question of liability for fouling football players and body checking hockey players, the answer is one familiar to all law students—it depends. Both hits in question are impermissible and are likely to result in penalties.14 However, simply breaking the rules of gameplay is not sufficient to show intent to harm or recklessness.15 Failure to adhere to rules has been found to be a foreseeable and inherent part of athletic competition.16 As the Illinois Supreme Court stated bluntly, in full-contact sports “a conscious disregard for the safety of the opposing player is an inherent part of the game.”17 To be actionable, the hits would have to be considered “totally outside the range of the ordinary activity involved in the sport.”18 Thus, it is possible that the foul and the body check would create liability, but unlikely. Both hits would need to be considered totally unacceptable in their respective sports, a high bar to reach.
Nevertheless, even if a co-participant can be held liable, it is unlikely they will be. There is another reason professional athletes tend not to sue each other: aside from legal barriers, the culture in professional sports largely chills litigation.19 Players who initiate lawsuits may be blackballed by teams and suffer tarnished reputations among their peers.20 For many, this simply isn’t worth it.
What remains to be seen is whether changing norms in contact sports will shift the current state of the law. Professional sports leagues have been trying to reign in hits to the head and neck area, a change which might shift what is considered “ordinary conduct” in their sports.21 Maybe one day a targeting foul in football will be considered completely outside of the scope of regular gameplay, rendering it reckless, and therefore creating liability for offending players. Such a scenario may seem far-fetched, but it is something to look out for in the future.
Joshua Winneker & Lindsay Demery, Protecting the Unprotected: Creating an Anti-Retaliation Policy for Professional Athletes That Exercise Their Legal Rights in Participant vs. Participant Liability Contact Sports, 12 Va. Sports & Ent. L.J. 315, 316 (2013) (“The problem is that in professional sports, those “victims,” players injured at the hand of an obvious tortfeasor, often do not exercise their legal rights against the other player . . . ”).↩
Gauvin v. Clark, 537 N.E.2d 94, 96 (Mass. 1989).↩
Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017).↩
Winneker & Demery, supra note 1, at 318.↩
Knight v. Jewett, 834 P.2d 696, 710 (Cal. 1992).↩
Gauvin, 537 N.E.2d at 97.↩
Knight, 834 P.2d at 710.↩
Id. at 95.↩
Nabozny v. Barnhill, 334 N.E.2d 258, 261 (Ill. App. Ct. 1975).↩
Jaworski v. Kiernan, 696 A.2d 332, 337 (Conn. 1997).↩
Megenity, 68 N.E.2d at 1084.↩
Id. at 1085.↩
See Mike Freeman, NFL’s New Targeting Rule Is Going To Be a Total Disaster, Bleacher Report (Mar. 29, 2018), https://bleacherreport.com/articles/2767037-nfls-new-targeting-rule-is-going-to-be-a-total-disaster [https://perma.cc/24ZH-EYUD]; see also NHL Headshot Ban Gets Cleaner, NHL (June 21, 2011), https://www.nhl.com/news/nhl-head-shot-ban-gets-clearer/c-566619 [https://perma.cc/TW2B-D7ZW].↩
Karas v. Strevell, 884 N.E.2d 122, 133 (Ill. 2008).↩
Id. at 132.↩
Knight, 834 P.2d at 710.↩
Winneker & Demery, supra note 1, at 326.↩
See, e.g., How the NFL Is Advancing Player Health and Safety, NFL (Apr. 2019), https://www.playsmartplaysafe.com/wpcontent/uploads/2019/10/nfl_factsheet_healthandsafety_093019b2.pdf [https://perma.cc/JUP5-VZWC].↩