Last weekend, I was working late and looking for some distraction when I came across a disturbing story about a football team paying its players to deliberately injure opponents on the field. As with most news released late on a Friday, it seemed to me that this was an embarrassing story that was being dumped with the belief that the news cycle would have moved on by the time people started tuning into the news on Monday morning. That didn’t happen, not this time. Probably because the players in question were from the 2010 Super Bowl champion New Orleans Saints. The scandal rockedthe world of sports in a way that I haven’t seen in years. Living as I do in Minnesota
, where the Vikings fans still talk about the time Brett Favre almost took them to the national championship game in the face of brutal hits by defensive linemen, the story took on even more importance.
While it probably will have no real effect on my life, the scandal his raised some very interesting legal questions with regard to virtual worlds and all other games we humans enjoy. Those of us who study the law of games will be quick to point out that a principle known as “the magic circle” often protects those involved from being criminally or civilly liable for actions they take in the course of a game that would be illegal in the real world. The most common analogies are violent sports like boxing or football. You couldn’t punch someone in the face for several seconds, let alone 20 minutes, without setting yourself up for felony assault charges in the United States, yet boxing is one of the oldest of sports, dating back to the Olympic games of ancient Greece.
We permit these contradictions in our treatment of similarly violent acts because we recognize that, so long as all of the participants know they are playing a specific game or sport, they have assumed the risk of injury. This assumption of the risk even extends to injurious acts that, while against the rules, might still be considered part of the game and thus expected. Fouls in basketball are typically against the rules, but even those improper, intentional acts are permitted if they’re part of the game. But what of a bounty system that pays players to so significantly hurt an opponent that he has to be carted off the field in a stretcher and thus removed from the game? Do those improper motivations change the way the law looks on this sort of violence? In some cases, the answer just happens to be “yes.” Compare two well-known cases of intentional torts that took place within the confines of a sports arena: Dale Hackbart and Todd Bertuzzi.
One of the oldest and most well-known cases of a deliberate sports injury being prosecuted in court is that of Dale Hackbart. A defensive back for the Denver Broncos, Hackbart took part in a play that resulted in an interception. Boobie Clark, a fullback for the opposing Cincinnati Bengals, struck Hackbart in the head in frustration long after the play ended. Hackbart suffered three broken vertebrae in his neck and other muscular injuries as a result. He sued Clark for an intentional tort, arguing that the hit was well outside the reasonable expectations for even the roughest football play. After he lost in the district court, the 10th Circuit Court of Appeals reversed the lower court and found that even a football player may be held responsible for injuring an opponent if he acts with the reckless disregard for the opponent’s safety. Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352, 355 (D. Co. 1977), rev’d 601 F.2d 516 (10th Cir. 1979), cert. denied 444 U.S. 931 (1979). (This and several other notable incidents of sports violence, are handily cataloged here for easy reference.)
The fight between Todd Bertuzzi and Steve Moore during a NHL hockey match in 2004 was different in many ways from the “reflexive” action by Clark in a moment of passion. Following a questionable hit by Moore against one of Bertuzzi’s Vancouver teammates that went unnoticed by officials in an earlier game, people close to the events reported that there was a de facto bounty placed on Moore’s head within the organization for the next time the team faced Colorado. When the teams played to a tie, it forced a rematch several days later. This time, several Vancouver players, including Bertuzzi deliberately targeted Moore for a fight, yet Moore refused to take the bait. Eventually, Bertuzzi came up behind Moore and punched him in the back of the head. As he fell to the ice, other players from both teams piled onto each other, with Moore at the bottom of the heap. The brawl received significant media attention and effectively ended the careers of both men–Moore from his injuries, and Bertuzzi from the imposed fines and suspension from the league. Lawsuits between Moore and Bertuzzi are ongoing, but what is more interesting is Bertuzzi’s claim that he was pressured by the coaching staff to go after Moore and thus was not legally responsible for Moore’s injuries. While his claim was corroborated by a high-ranking official within the organization, the team officially denied that it condoned the attack and the matter was settled out of court.
What makes the two different, as I said before, was the context surrounding the hits. Both were intentional by the legal definition of a tort, meaning they were the result of actions that the tortfeasor meant to take, regardless of whether he intended the end result. But unlike the former, the latter hit also appears to have been part of a premeditated design. Just as in the New Orleans bounty scandal, a systematic plan to target opponents for injuries raises significantly greater concerns than a hit in the heat of the moment.
The pressure now is on the the NFL to find a way to appropriately deal with this problem in a way that responds to fans’ outrage while balancing the need to keep tort lawyers at bay. As a group that is facing numerous lawsuits complaining about its failure to do more to prevent traumatic brain injuries, the NFL must make the case that injuries, no matter how severe or intentional, are part of the game and simply expected. This assumption-of-the-risk defense is as old as sports and applies to nearly all injuries or losses arising from
games, not just the ones involving helmets and pads. You assume the risk that someone might take all your money at the poker table by bluffing just as you assume the risk that an investment bank in EVE Online or Second Life isn’t a massive ponzi scheme (which it probably is). It’s all about the rules of the game and what the expectations of player behavior are.
What’s most important is to understand when matters should be handled internally and when outside law enforcement or courts should step in. If players are able to sue each other in court over trivial rule infractions, the game will fall apart because no one will risk being sued. If law enforcement looks the other way on everything that happens on the playing field, a person could get knifed in a volleyball game and get away with a fine or being banned from the sport but no other repercussions because it was “part of a game.” I find that now is as good a time as any for us to have a serious discussion about the nature of games and when we allow the law to intervene.
It’s probably impossible to draw one line that will fit all games, especially those that take place in virtual worlds, where even the laws of physics are optional. But try we must, if just for the sake of improving our understanding of the important role that games have for society. They give people an outlet where they satisfy the primal urges from deep within our lizard brains without abandoning society or collapsing the economy. So hopefully this scandal will get people talking about why we value games and what we expect from the people that play them. The outcome of that discussion will have a profound impact on our worlds, real and virtual.