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Legal action in wake of Saints 'bounty' revelations not likely

Editor's note: and NFL Network asked Gabe Feldman, an associate professor of law and director of the sports law program at Tulane University Law School, if the filing of criminal charges could be possible in the New Orleans Saints' "bounty" case. Here's what Feldman had to say:

In theory, the players and other Saints employees who participated in the "bounty" scheme could be facing possible criminal and civil liability. However, most of the litigation in this area has involved the NHL, and most of those cases have been litigated in Canada, so there isn't much United States case law to guide us.

In 2000, a Canadian court found NHL player Marty McSorley guilty of assault and sentenced him to 18 months of probation after he delivered a vicious hit to Donald Brashear during a game. In 2005, Steve Moore, another former NHL player, brought a $3.25 million lawsuit against player Todd Bertuzzi in Ontario after Bertuzzi punched Moore in the back of the head, fracturing his neck. Interestingly, that lawsuit, which is scheduled to go to trial in September of this year, also was filed against the coach and general manager of Bertuzzi's former team, the Vancouver Canucks, as well as the team itself.

But again, those are Canadian cases. While it's possible that NFL players could be prosecuted in the U.S. for battery, and coaches could be prosecuted for conspiracy to commit battery, I don't think any criminal charges are likely, for at least two reasons.

First, U.S. courts tend to defer to league self-regulation, choosing not to interfere with on-field or on-ice discipline issues unless the conduct in question is far outside the range of what a player can expect to happen in the game. (For an extreme, hypothetical example of such conduct, see the opening scene of the film, "The Last Boy Scout," in which a football player pulls out a gun and shoots the players on the other team.) Courts generally don't want to get involved and potentially chill or impact how the game is played, as long as the league has reasonable rules in place to protect the players.

Second, it would be very difficult for a prosecutor to win a criminal case. Football is an inherently violent sport, and NFL players assume the risk of being subjected to violent conduct on the field. Battery generally is defined as the "intentional use of force against a person without that other person's consent." The problem with any criminal case is that players consent to being hit violently and repeatedly, and injuries are a regrettable but unavoidable and accepted part of the game (the fact that players are regularly placed on injured reserve is good evidence of that).

From a legal perspective, the question essentially is if NFL players consent to (or assume the risk of) violent conduct with the intent to injure, as motivated by a so-called "bounty" fund. If "pay-for-injury" hits are outside the range of conduct expected in the sport, then there likely is no consent (or assumption of risk by the player), and thus there would be potential liability.

In other words, the issue boils down to if the hits in question were "part of the game." Tough hits by defensive players are part of the game, but tough hits delivered with the specific intent to injure, as motivated by a potential "bounty," are not. However, it's hard to imagine how a judge or jury would be able to tell the difference between a good, clean, hard hit and one that was delivered by a player trying to cause an injury to earn a "bounty."

A civil case (for example, if an injured player were to sue one of the Saints' players or coaches for money damages) would face similar obstacles, though there is some precedent in the NFL for such action.

In 1973, Dale Hackbart, a defensive back for the Denver Broncos, was on one knee and away from the ball after an interception when Charles Clark, a member of the Cincinnati Bengals, hit him in the back of the head and fractured his neck. Hackbart brought a civil case against Clark, and the 10th U.S. Circuit Court of Appeals held that a football player can be made responsible for injuring an opponent if he acts with "reckless disregard for the opponent's safety."

More recently, a jury awarded money damages to Marcus Williams in his 2005 civil lawsuit against former Oakland Raiders teammate Bill Romanowski, who punched Williams in the face during a practice, though no criminal charges were filed. (Former NBA player Rudy Tomjanovich won a $3.25 million jury verdict after being punched in the head during a 1977 NBA game by opponent Kermit Washington, but no criminal charges were filed in that instance, either.)

But the Romanowski and Tomjanovich cases involved players clearly and intentionally punching defenseless opponents in the head. It would be tough for a court or jury to determine whether Saints players were acting with reckless disregard for their opponents' safety because of a possible "bounty" or if they were simply trying to make a hard tackle. As with a potential criminal case, it would be very difficult for a judge or jury to discern if any injuries would have been caused by violent hits outside the range of ordinary conduct involved in NFL football. There's also the question of whether any injured players would be willing to bring a civil case, although with the recent concussion litigation against the NFL, that's not outside the realm of possibility.

There has been some talk of fans possibly bringing a class-action suit because they were "defrauded" by the "bounty" fund, but I don't think such a suit would have any real chance at success.

In 2007, after news of the so-called "Spygate" scandal broke, in which Patriots coaches were found to be videotaping Jets coaches' hand signals, a New York fan tried to sue the New England franchise and coach Bill Belichick, claiming fans expecting to see an "honest" game had been defrauded. But a court quickly dismissed that case, concluding the Patriots' conduct had caused no injury to the fans. The fans had paid to see a football game, and they were able to see a football game.

The same analysis would apply here: The "bounty" fund might have upset fans, but it didn't injure them in any legal sense of the word. So while the parties involved with the "bounty" scheme might have some legal exposure from players injured during games, there is no real threat of exposure from unhappy fans.

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