DATE:  March 17, 2004

STUDENT:  Lisa Nash, 1L

TOPIC:  Consent; Assault and Battery

CASE:  Hackbart v. Cincinnati Bengals, Inc. and Charles Clark, 601 F.2d 516; 444 U.S. 931 [1979]

FACTS:  Plaintiff Hackbart was a professional football player [defensive back] for the Broncos.  During a game against the Cincinnati Bengals in 1973, a pass was intercepted and returned to mid-field.  As a result of the interception, plaintiff Hackbart and co-defendant Clark switched roles with Hackbart playing offense and Clark now playing defense.  Hackbart attempted to block Clark by throwing his body in front of him, then remaining on the ground.

It was found in the trial court that Clark, out of anger and frustrtion, [but without a specific intent to injure] struck a blow to the back of Hackbarts’s head and neck with his right forearm, while plaintiff was still kneeling.  The blow was so severe that it caused both players to fall forward to the ground.

Since the referees did not observe the incident, a foul was not called.  However, the game film clearly showed what happened.  At the time, plaintiff did not report the incident to his coaches or anyone else.  However, the pain continued and he was treated by the Broncos’ athletic trainer.  Eventually it was discovered by a physician that the plaintiff had a serious neck fracture.

Although the blow by Clark was intentional, the trial court judge ruled as a matter of law that the game of professional football was/is violent in nature, and that the only available sanctions were penalties and game expulsion.  It was noted that fouls were often overlooked, that the game was/is played in an emotional and noisy environment, and that such incidents as the one before the court were not unusual.

Additionally, the trial court judge found that it would be unreasonable to apply the laws and rules which are part of injury tort law to the game of professional football, stating that it would be unreasonable to hold each player as having a duty of care for the safety of others.  The concept of assumption of risk and contributory fault were also discussed and it was concluded that Hackbart had to recognize that he accepted the risk and that he could be injured by the act of throwing his body in front of Clark.

HISTORY:  The United States District Court for the District of Colorado found for defendants, Cincinnati Bengals and Charles Clark.  Plaintiff appealed.

ISSUE:  If a blow is intentionally inflicted upon a professional football player by an opposing player during a professional football game, can a tort liability exist?

RULING:  Yes. The United States Court of Appeals reversed and remanded the case for a new trial in accordance with this view.

RULE/ANALYSIS:  Several issues were discussed on appeal.  The main issue was whether or not the intentional striking of a player in the head from behind was an accepted part of the rules or customs of professional football.  It was found that there were/are rules of the game which prohibit intentional striking of blows, and as such, the appellate court decided that there were no principles of law which allow a court to rule out tortious conduct, even in a rough game such as football.  Also, since negligence was not an issue, contributory negligence (or assumption of risk) on the part of plaintiff did not apply.

SUMMARY:  The rules and general customs of football specifically prohibit the intentional striking of a player in the face or from the rear.  The court of appeals felt that the restraints placed upon football players were intended to establish reasonable boundaries so that one football player cannot intentionally inflict serious injury upon the other.  The injured player should be allowed damages under tort law.

The findings of fact based on the evidence were not an issue at the appeal.  Therefore, the appellate court only reversed the decision and remanded for a new trial with the foregoing views.