Saints or Sinners? Legal Implications of the New Orleans Saints Bounty Scandal
By Fatema Merchant
Acts which cause injury to other players may be exempted from sanctions whether criminal or tortious if they fall within the framework of the sporting activity. However, conspicuous, deliberate and intentional acts of violence causing such injuries may not escape liability. In addition, in many cases the employers of players such as clubs may also be held liable for the acts of their athletes. Though, players may indulge in violent acts on provocation, out of spite or in a fit of rage, there have been occasions where players have been instructed to play roughly or intentionally injure other players by their employers or coaches. To throw more light on this, this feature discusses the infamous New Orleans Saints “Bounty” scandal and explores the extent of liability each participant may incur for misdemeanours on the field of play.
The New Orleans Saints Bounty Scandal
In 2012 the National Football League (“NFL”), suspended the defensive coordinator of the New Orleans Saints team (“Team”), Gregg Williams, indefinitely after it found evidence that the latter and approximately 22-27 players of the team had established a fund which was used to pay bonuses or “bounties” to players who were successful in injuring the opposing team players during matches. The players of the Team were pushed to play in a rough and unruly manner in absolute disregard of the rules of the game. The NFL started probing the matter in 2010 after averments of such conduct began to surface but was able to conclude the matter only in 2012. The NFL discovered that Williams and the players pooled in money in the special fund and awarded players payments on the basis of the injury they were able to inflict on the opponents. Hence, for a cart-off injury where the opposing team player had to be carried off the field on a stretcher and a knock- off injury where the player was unfit to continue his participation in the match, the New Orleans Saints player received approximately $1,000 and $1,500 respectively, which sum is alleged to have multiplied during play offs. It was established that the accused were carrying on this activity – which is staunchly opposed and denounced by the NFL – since 2009, the year in which they claimed the Super Bowl title. As per the NFL findings, the New Orleans Saints players deliberately made attempts to cause injury to Vikings quarterback Brett Favre and Arizona Cardinals quarterback Kurt Warner on numerous occasions during the playoffs in 2009 and the quarterbacks Aaron Rodgers and Cam Newton of Green Bay Packers and Carolina Panthers during the regular season of 2011.
The NFL also suspended the head coach of New Orleans Saints, Sean Payton for the 2012 season, for passively supporting the fund and failing to take any action to discontinue it after being instructed to do so by the team owner Tom Benson. In addition the Saints team was asked to pay a fine of $500,000 and as a penalty had to forego its second round draft picks of 2012-2013. The NFL also asked the team to produce in writing a declaration that the team did not have or operate any more such funds or bounty programs. The players who participated in the illegal acts are currently being investigated by the National Football League Players Association and will be accorded punishment by the NFL on the conclusion of such investigation.
Below we evaluate the extent of liability that each party in the above case may incur for the deliberate acts of violence committed by the players.
Liability of the players
The players of the New Orleans Saints team lured by monetary incentives and encouraged by their coordinator intentionally inflicted injuries on targeted players of the opposing teams. Such acts may attach tort and criminal liability as by indulging in them deliberately, the players go beyond the scope of the game as athletes only consent – under the principle of volenti non fit injuria – to injuries that are indigenous to the nature of the particular sport and/or may be legitimately expected keeping in mind the constitution of the sport. The athletes consent to expected injuries is in effect conclusively withdrawn when the injuries are inflicted on purpose. Such conscious and pre-meditated acts of violence may make the offending players guilty of the offence of battery. In layman’s term, battery is the unauthorized application of force on the person of another which may result in bodily injury or harm. However, the nature of the offence and the extent of liability may vary in different jurisdictions. In addition, what constitutes tort battery and criminal battery may also differ. In the US, if a person succeeds in establishing contact with another with the intention to do so he may be liable for tort battery. However, in order to constitute the act as an offence of criminal battery the person must have the requisite intention to cause the harm or injury. There have been cases in the past wherein the courts have held that victims of such deliberate acts of violence may bring an action of intentional tort against the offender such as the decision of the United States Court of Appeal 10 Circuit in Hackbart v. Cincinnati Bengals, Inc. (601 F.2d 516 (10th 1979)). In this case, during a football match Charles Clark a player of the Cincinnati Bengals team acting out of anger and frustration struck the plaintiff who was playing for Denver in the back of the head with his right forearm. The Court dismissed the trial court’s ruling that a professional football player assumes and consents to such reckless behavior in football and injuries springing from them and directed the lower court to decide the matter on the facts and the merits of the case.
In the case of New Orleans Saints a criminal prosecution seems highly unlikely as NFL has its own set of sanctions which it will issue against the players once the NFLPA winds up its probe. In addition, the right to seek relief may also suffer from the statute of limitation as a considerable amount of time has been passed from when the acts were first committed to their discovery. However, the Courts may grant leave to prosecute considering that evidence leading to the conclusion that the acts were prearranged was unearthed only recently. The defaulting players may also be held liable for breach of duty and responsibility towards fellow athletes and showing absolute indifference to their safety.
Liability of coaches, coordinators, experts etc.
The Courts have upheld the liability of employers for the violent acts of the players which are a result of specific instructions imparted by overzealous or callous coaches, coordinators, experts, etc. encouraging athletes to play a rough game. In Canterbury Bankstown Rugby Football League Club Ltd v Rogers; Bugden v Rogers , the New South Wales Court of Appeal found the club vicariously liable for the acts of its player Bugden who while tackling the ball in a game planted a blow on the opponent’s face with an outstretched arm. The Court observed that the players of the tainted club were suggested and recommended by the coach to deliberately play an aggressive game and by virtue of such instructions the club assumed all responsibility and liability for the injuries inflicted by the player on the opponent.
However, the case of New Orleans Saints took this one step further as the defensive coordinator and the accused players had set up a fund to offer financial perks to players who were successful in carrying out the pre-planned injuries to targeted players of the opposing team. This clearly shows an arrangement between the players and the officials to achieve an unlawful purpose and scheme which could also make them liable for criminal conspiracy. In addition, since the officials were not only aware of the illegal acts of violence committed by the players but were also aiding and instigating the players to indulge in such activities they may also be guilty of abetting the offence.
The NFL has already suspended the defensive coordinator of New Orleans Saints Gregg Williams indefinitely and the coach Sean Payton for the 2012 season. Criminal prosecution of these officials appears improbable.
Liability of Team owners
The owners of the New Orleans Saints team may be held liable for the acts of the players, coordinators and coach. This liability springs from the tort principle of “Respondeat Superior” which imports responsibility for the unlawful acts committed by the employees within the scope and term of their engagement. Courts across various jurisdictions have not shied away from applying this principle to cases where players have caused injuries to opponents citing that the violent or foul acts are an unauthorized means of carrying out the sanctioned acts during the course of the player’s employment with the employer. In 2008, the Court of Appeal in the case of Gravil v Caroll & Redruth RFC ( EWCA Civ 689) held a semi- professional rugby club Redruth RFC liable for the actions of its player Richard Carroll who landed a punch on Andrew Gravil of Halifax RFC during a National League Division 2 match. While deciding the matter, the Court of Appeal applied the principle “whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable” which was established in Lister v Hesley Hall Limited  UKHL 22, . As an explanation to its decision, the Court of Appeal recited a clause in the employment contract which prohibited the players from physically assaulting other players, thereby deducing that such a possibility was comprehended by the club to take place during the course of its engagement of the player and since the club failed to groom its players it was liable to the victim for damages.
Another instance of the employer being held responsible for the acts of the employees is illustrated by the Tomjanovich v California Sports Inc H-78-243 (SD Tx 1979) case. In this case, basketball player Tomjanovich received a mighty blow on his face when he was punched while running at great speed by Kermit Washington of the Los Angeles Lakers. The District Court held that the Club was responsible for the acts of the player in this situation as the club was aware of his nature and predisposition as they had specifically hired him to be the “enforcer” on the court and should have taken adequate steps to train him. In this case the liability accrued to the club on account of the knowledge it possessed about its player’s demeanor and the fact that it kept selecting the said player regularly to play for them. Here, the Court emphasized on the fact that if the employer purposely brings a player on his team keeping in mind the specific traits or behavior patterns of such a person with the intention to capitalize on them, he should be liable for the violent acts committed by such a player whether or not the club had instigated him to do so or had any intention of causing injury to any player. The reasoning used here is that since the employers of the players exercise control and charge over them, the responsibility of grooming and disciplining them falls on their shoulders and if the player indulges in infringing behaviour during the term of his employment the employers are liable to pay compensation to the victims.
In the New Orleans Saints case the owner of the team Tom Benson on discovery of the fund had directed the same to be closed. Hence, the extent of his liability or that of the team would be a matter of determination by the judicial authority if the matter was taken to court. However, it could be argued that the responsibility of the team owner/s did not end at providing instructions and that they should have taken positive steps to make sure that the unlawful activity was put to an end. Nonetheless, the NFL has already imposed a fine of $500,000 on the team and has stripped it of its second round draft picks of 2012-2013.
Liability of the Governing Bodies of sports
The governing bodies of each sport are responsible for overseeing, supervising and ensuring the smooth and clean functioning of the sport. They formulate and implement rules to regulate player conduct on the field. Acts causing deliberate injury to players increase the intrinsic risks, dangers and hazards of each sport and hence need vigilant patrolling. If such activities are not kept in check, the governing bodies may be liable for failing to ensure player safety and security, as the players look up to them to monitor delinquent behavior and conduct. In the aftermath of the New Orleans Saints scandal, certain former players have brought an action suit against the NFL alleging that the latter has been unsuccessful in safeguarding the players against concussions and has also failed to educate players about the perennial detriments of concussions.
When savage acts of violence are committed by players they not only incur personal liability for them but may also expose their employers or the league to vicarious liability.
Though injury is an integral part of the game, the sporting activity receives a brutal blow when its spirit and essence are jeopardized. Of heightened concerns is when athletes who are not only the face of the sport but are also entrusted with safeguarding its integrity proactively participating in such activities. Though Leagues and governing bodies of sports have repeatedly condemned such conduct, strict checks and controls need to be implemented to identify and stop such behaviour before it consumes the sport. The governing bodies must also educate the athletes and spread awareness among them about their moral and legal responsibility towards other players.
© The Sports Law & Policy Centre