This article originally appeared in the April 2012 Insurance and Reinsurance Committee Newsletter.
On March 2, 2012, the National Football League ("NFL") issued an official statement confirming that its investigation disclosed that between 22 and 27 defensive players on the New Orleans Saints participated in a "bounty" program whereby players were rewarded with cash payments for inflicting injuries on opposing players. Specifically, players were paid $1,500 for a "knockout," meaning that the opposing player was notable to return to the game, and $1,000 for "cart-offs," meaning that the opposing player was carried or carted off the field.
Perhaps the most surprising part of the recent news was the involvement of coaches and team personnel in these "bounty" programs. According to the NFL investigation, the bounty program was administered by the defensive coordinator of the Saints, Gregg Williams, while other defensive coaches and the head coach of the Saints, Sean Payton, had direct knowledge of the program. The NFL is also investigating whether Williams administered a similar program with other teams, including the Washington Redskins and Buffalo Bills. While the Saints may be the target of the NFL's current investigation, it is obvious that other teams and players have of had similar programs in place.
Of course, nobody could forget what became known as the infamous "Bounty Bowl," a game between the Philadelphia Eagles and Dallas Cowboys in 1989. During that game, Eagles coach Buddy Ryan allegedly instructed one of his linebackers, Jesse Small, to deliver a hard block on Cowboys kicker, Luis Zendejas, who happened to be a former Eagle player. Since any football fan knows that the kicker is not worth blocking, it raised some red flags when Small delivered the hit. In the postgame conference by Cowboys coach Jimmy Johnson, he said that he believed the Eagles had a $200 "bounty" on Zendejas and a $500 "bounty" on Cowboys quarterback Troy Aikman.
Some critics have taken the position that these "bounty" programs ate traditional and commonplace, and that violence and injuries are a part of the NFL game. Others concede that football is a violent sport and injuries happen, but argue that paying players to intentionally try to injure another player brings the sport to another level. Regardless, there is no doubt that such "bounty" programs area clear violation of the NFL Rules. In fact, before the 2011-2012 season, the NFL commissioner, Roger Goodell, sent a memo to all teams explicitly stating, "[n]o bonuses or awards may be offered of paid for on field misconduct (for example, personal fouls to or injuries inflicted on opposing players)." Thus, violations have clearly been committed, and surely, the NFL will inflict what it feels are appropriate consequences to the teams and its players. However, one lingering question still remains: Can the teams and their players, as well as their insurers, be held liable for civil lawsuits which may be filed by victimized players?
Although there is no clear answer, this is not the first time that courts have been faced with the question of whether a player or team could be held civilly liable for an injury to an opposing NFL player. In Hackbart v. Cincinnati Bengals, (1) a pro football player for the Denver Broncos, Dale Hackbart, initiated litigation against an opposing player, Charles Clark, and the opposing team, the Cincinnati Bengals, for an injury that occurred during an NFL game in 1973. Although Hackbart remained in the game, he claimed that he suffered a neck injury when Clark intentionally struck him in the back of his head with his right forearm after the play had ended. (2) Apparently, the officials did not observe the incident, so no penalty was called. (3) After a bench trial, and notwithstanding the Court's finding that Clark's act was intentional, the U.S. District Court for Colorado entered judgment for Clark and the Bengals, mainly on the basis that Hackbart assumed the risk of injury. …