Bounty issue could be NFL legal problem
Down on one knee after a teammate’s interception return, Denver Broncos defensive back Dale Hackbart took a jab to the head that eventually set a legal precedent.
"Just as Billy Thompson was heading into the end zone, Booby set his feet and drilled me in the back of the head with his forearm," Hackbart told FOXSports.com. "He landed with the full weight of his body after the impact."
No penalty was called against Cincinnati Bengals running back Booby Clark for that late hit during a game in 1973. No fine or other discipline by the NFL was issued. Hackbart — who fractured four vertebrae in his neck and was forced to retire after a 12-season NFL career — filed a lawsuit, the results of which could come into play in the burgeoning pay-for-performance scandal surrounding defensive coordinator Gregg Williams and the New Orleans Saints.
After a trial court in Colorado ruled against Hackbart in 1977 — stating that, in essence, violence is an accepted part of football — the 10th Circuit Court of Appeals in June 1979 overturned that ruling, ordering a new trial. While Hackbart would eventually settle with the Bengals and Clark, it was the language in the appeals court’s ruling that would set the legal standard for more than 30 years.
Included in the court’s ruling was the opinion that "The general customs of football do not approve the intentional punching or striking of others. … Undoubtedly, these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another."
In the wake of allegations by the NFL that the Saints had a system in place in which players received monetary payments for knocking opposing players out of games, courts around the nation could very well find that "reasonable boundaries" do not include bounties, legal experts told FOXSports.com.
"What do you consent to when you play football?" LSU law professor William Corbett asked rhetorically. "There’s a risk to playing the game. You know about that ahead of time, and you’re put on notice. … There are certain things you consent to in participating in a sport, but there are things you don’t consent to."
Like being the target of a bounty. Even then, Corbett said such cases could be tough to pursue — and that’s if any current or recently retired player steps up and files a lawsuit. That’s hardly a guarantee in the insular world of professional football, where players have dismissed the alleged bounties as part of the game.
Two players who were alleged targets of the Saints — Brett Favre and Kurt Warner — both brushed off the issue.
"It’s football," Favre told SI.com on allegations that Saints linebacker Jonathan Vilma offered a $10,000 reward to injure him during the 2009 NFC title game. "I don’t think anything less of those guys."
Along with proving bounties fall outside of footballs norms, another hurdle toward a civil suit is the statute of limitations — which can be as short as one year in some jurisdictions. (Typically, the statute of limitations applies in the jurisdiction in which the assault is alleged to have taken place.) Such limits can be extended because lawyers could argue that the clock doesn’t begin until the allegations of a pay-for-play system are fully made public.
The NFL is still in the midst of its investigation, and commissioner Roger Goodell is expected to announce any punishment against Williams and the Saints before an annual league meeting that begins March 25.
The players — and possibly even Williams — could even be on the hook for criminal prosecution.
"It would probably have to take a prosecutor with a lot of time on his hands or looking to make a name for himself," said Corey Atkins, a former prosecutor who works as a defense attorney at the Charlotte-based law firm of Barnett & Falls.
North Carolina is one of a handful of states in which citizens can bring a case directly to a judge — instead of first going to police — in instances of assault. Just don’t expect Carolina Panthers player Steve Smith to look for a legal remedy, even though he was the recipient of a late hit by Saints safety Roman Harper that drew a penalty — and later a $15,000 fine — last October. Smith dismissed the hit as just "football."
A couple of more questionable hits occurred later in the season when the Saints traveled to play the Tennessee Titans. Harper was fined twice for illegal hits during the Dec. 11 contest to the tune of $22,500.
"To my mind, the difficulty in establishing the basis for criminal prosecution is the motivation of the player," said John Barringer, a principal at the Nashville law firm of Manier & Herod and former assistant district attorney. "Did the player intentionally commit an assault with a criminal intent?"
While bounties are illegal under league rules, a hard — and legal — hit that knocks a player out of the game would not be prosecutable, Barringer said. Even borderline plays, like a late hit, could be considered part of the game.
"If a player were to bring a knife out on the field and stab someone intentionally during a pileup, there would clearly be a criminal intent in that situation," Barringer said. "However, it seems to be much more nebulous an area for a prosecutor to be able to establish that the existence of a bounty expressly or impliedly motivated the player to inflict serious bodily injury upon an opposing player. I think that you would have to look at the act itself and be able to prove beyond a reasonable doubt that the player was simply motivated by criminal intent rather than rules of the game."
FOXSports.com contacted law enforcement agencies in New Orleans, Charlotte and Nashville, and the respective police spokespeople said no investigations into allegations of assault or any other crimes have been launched in relation to the alleged pay-for-performance scandal.
"I think it’s one of those things they’re going to keep in the locker rooms," Major Eddie Levins of the Charlotte-Mecklenburg Police Department said. "If someone was to make a complaint, we definitely would look into it."
Canadian authorities have been much more likely to investigate and prosecute their pro athletes for in-game conduct than have their counterparts south of the border.
Dino Ciccarelli, a member of the Minnesota North Stars at the time of a 1988 incident in Toronto, was fined $1,000 and sentenced to a day in jail for a fight on the ice. As a member of the Boston Bruins, Marty McSorley was convicted of assault and received an 18-month suspended sentence for slashing Vancouver Canucks enforcer Donald Brashear in the head in 2000.
Todd Bertuzzi, while a member of the Vancouver Canucks, pleaded guilty for his blindside punch to the side of Colorado Avalanche forward Steve Moore in 2004. Bertuzzi, currently a member of the Detroit Red Wings, received one year of probation and 80 hours of community service. Moore, who fractured three vertebrae and never resumed his career, is still suffering the effects of the incident.
For Hackbart, his injury set more than legal precedent — it was also the impetus toward installing X-ray machines in stadiums. The lawsuit, however, didn’t benefit him much financially.
"I think the attorneys got more than I did," said Hackbart, now 73. "It gave me some satisfaction more than anything."
If approached by a player who was injured in the alleged pay-for-performance program instituted by Williams, Hackbart said he wouldn’t necessarily advocate the same route through the judicial system he took.
"There is a thin line in the game of football between playing aggressively and playing with the intent to injure," Hackbart said. "That’s often tough to determine. If you were injured and you suspect it was because there was a bounty put out on you, there are a lot of circumstances that have to go your way (in court). In today’s world, that’s probably not going to happen. I might add, it hasn’t happened again since my lawsuit."