Should the Saints Worry About Legal Trouble?

By Jake Simpson

The NFL punished the team harshly for its bounty system—but are Sean Payton and the other coaches also susceptible to lawsuits?

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Reuters

Last week, the NFL announced harsh penalties against the New Orleans Saints for their so-called "bounty program" organized by former defensive coordinator Gregg Williams, a system that provided cash incentives for injuring opposing players. The league suspended Williams, head coach Sean Payton, general manager Mickey Loomis, and an assistant coach for a year and docked the team $500,000 and two second-round draft picks.

The punishment, which some felt was hypocritically draconian, seemed to bring an end to the fallout from the bounty program. But plaintiffs' attorneys and at least one U.S. Senator may feel differently, opening the door for potential lawsuits against the team and its personnel.

"There's always the possibility of litigation," said Gabe Feldman, sports law professor at Tulane University Law School. "The real question is the likelihood of success."

Feldman said that current or former players who were injured on plays that may have involved bounty programs could file an intentional tort claim in state court. Defendants in a tort claim could include players, coaches and even top Saints officials if they were aware of the bounty scheme.

An intentional tort claim seeks to prove that a person or entity intentionally caused mental or physical harm to another person. But Feldman said that potential plaintiffs may be stymied by the tort doctrine known as assumption of risk.

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"The notion is that NFL players consent to repeated violent conduct because that's part of the game," he said. "What they don't consent to is conduct of an intent to injure or reckless disregard for player safety."

Any litigation would probably hinge on the plaintiffs' ability to prove that a Saints player deliberately injured an opponent. But many of the hits that led to bounty payments, such as this 2010 tackle that ended quarterback Kurt Warner's career, were legal under NFL rules and therefore covered by the assumption of risk doctrine.

Lawsuits arising from legal in-game hits would be a first in NFL history. Though the league is currently facing a rash of lawsuits from former players over its alleged failure to properly inform them of the long-term risks of concussions, none of the lawsuit concern specific, legal hits sustained in game action.

Feldman said that proving a legal hit was delivered with intent to injure, even if it led to a bounty payout, would be next to impossible.

"If it's a legal hit, unless you have testimony where [a Saints player] says 'I hit you with the intent to injure you,' I don't know how you could have any success in litigation," he said.

Despite the low probability of success, Feldman expects there will still be civil lawsuits filed against the Saints because "all you need is one player and one eager plaintiffs' attorney and you have a case".

Feldman noted that other sports leagues, particularly the NHL, have dealt with civil lawsuits based on in-game action. The most high-profile case in recent years is the civil suit against Todd Bertuzzi, filed by former Colorado Avalanche center Steve Moore after Bertuzzi, then a left winger for the Vancouver Canucks, grabbed Moore from behind, punched him in the back of the head and drove him face-first into the ice.

Bertuzzi, who pled guilty to a simple assault charge in Canada, is scheduled to go to trial in the civil action in Ontario Superior Court later this year.

Feldman noted, however, that the Bertuzzi case involved a violent action that was explicitly against NHL rules, unlike the hits that were allegedly part of the bounty program.

The legal ramifications of the Saints scandal were further complicated when Sen. Dick Durbin (D-IL) announced on March 22 that he would chair a Senate Judiciary Committee hearing to determine whether federal sports bribery laws should be expanded to include bounty programs.

"I'm happy that the NFL acted swiftly once a bounty program was discovered," Durbin said in a statement. "But questions remain about what the NFL and other professional and collegiate sports organizations are doing to protect their players and the integrity of their sports."

The hearing could potentially lead to proposed legislation to expand federal bribery laws to encompass tort actions and provide legal protection for players injured during a game, Feldman said.

Such legislation would likely resemble the Sports Violence of Act of 1980, which would have imposed prison terms of up to a year for pro athletes who knowingly used excessive force in a game. The bill failed to garner enough votes to pass Congress, as did the Sports Violence Arbitration Act of 1983, which proposed the creation of a "sports court" to deal with acts of excessive violence in U.S. pro sports.

Despite Durbin's announced hearing, Feldman said that new federal legislation was unlikely because of the severity of the NFL's punishment.

"By having a yearlong suspension, the league did a good job of creating enough of a deterrent," he said. "The message is loud and clear: You can't be incentivized to intentionally injure other players."

Even if Durbin's hearings don't lead to legislation, the league and its players will still be nervously awaiting the outcome of any tort claims filed against Saints personnel. Because football will not be football if defensive players have to worry about getting sued every time they prepare for a big hit.

"If you allow for liability for this, you might fundamentally change the way the game is played," Feldman said.

This article available online at:

http://www.theatlantic.com/entertainment/archive/2012/03/should-the-saints-worry-about-legal-trouble/255113/