Category Archives: sports law

NCAA Attorney Scott Bearby: Back When Men Were Men and The Cincinnati Bengals Were Gritty

When NCAA attorney Scott Bearby was asked about concussion risk he replied:

“The law is that there is an assumption of the risk.  That puts the onus on the participant.”

Touche old sport.  True, very true.

Assumption of the risk is a legal doctrine.  A defense you might say, that prevents someone who knowingly and voluntarily participates in a dangerous activity from recovering for their injuries suffered during the dangerous activity. The  individual voluntarily participating in a dangerous activity is said to assume the known risks associated with the dangerous activity.

Let’s revisit the story that provides a lot of that assumption of the risk theory to football.  In 1971, Charles “Boobie” Clark was a standout offensive lineman at Bethune-Cookman.  In a game that became a 48-0 blowout victory over Albany State University, Clark’s head coach, Ty McClairen placed Clark at fullback due to losing several players to injury during the game.

Game film from the Bethune-Cookman/Albany State blowout was sent to Cincinnati Bengals head coach Paul Brown with the intention of showcasing other players; but Brown saw something in Clark and decided he would draft him if and when the opportunity came.  Brown got his chance and drafted Clark as a fullback in the 12th round of the 1973 draft.  Clark would go on to win rookie of the year with 988 yards rushing and 8 touchdown runs.

Also during that 1973 season, Clark was involved in an on-field incident when he struck Dale Hackbart of the Denver Broncos with a right forearm to the back of Hackbart’s head after a play was finished.  The incident happen when Clark, ran a pass route into the Bronco’s endzone and the intended pass was intercepted.  Hackbart then became a blocker on the play and threw himself in front of Clark.   Acting out of anger and frustration, Clark stepped forward and struck a blow with his right forearm to the back of the kneeling Hackbart’s head and neck; with sufficient force to cause both players to fall forward to the ground.  Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted.

Hackbart suffered injuries from Clark’s forearm blow to his head and subsequently filed a lawsuit against Clark and the Bengals.  The case eventually went to trial as an intentional tort, specifically battery. Clark testified that his team was losing and that he intentionally hit Hackbart due to his frustration. The case went as far as the United States Court of Appeals (10th Circuit) in 1979.  The court entered judgment in favor of the Bengals and Clark because even if Clark struck Hackbart when he was not supposed to do so, Hackbart assumed the risk of such an injury due to the level of violence and the frequency of emotional outbursts in the league.

Okay.  After reading that you may think that Mr. Bearby is on to something.  After all, here is this piece of case law that has been largely untouched in 35 years that says that even if you illegally punch another player, that player assumed the risk.  Scram, get lost.

Well, a lot has happen in the past 35 years.  The culture has changed.   Pro athletes are no longer immune to criminal charges for on the court/field/ice violence as they may have been in generations past.  Especially in hockey.  Most notably was when Marty McSorley was charged and convicted of assault in 2000 and sentenced to 18 months but given a conditional discharge. Then in 2004, Todd Bertuzzi was formally charged by the Vancouver attorney general for assault causing bodily harm when he sucker punched an opponent in the head.

But something else differentiates all of these cases from concussions.  The medicine surrounding sports concussions has only recently been openly discussed.  Remember from assumption of the risk definition above, the part about knowingly and voluntarily?  How much about concussions do these kids know?  Then, even if kids are knowingly consenting, what happens when they do suffer injuries?  Should the NCAA just skate?

I believe the idea that college athletes should get paid is absolutely absurd because they already are getting paid.  They are leaving college debt free and with irreplaceable connections.  I’m not going to insult anyone’s intelligence by calling the FBS/major conference athletes student-athletes, either.  But if you are going to only offer someone a free education because they can help you win football or basketball games, you need to take care of them for the rest of their life if they suffer injuries holding up their in end of the bargain.  The arrangement between the school and the athlete is not a purely voluntary one.  There is a bargained for exchange.  Its a contractual arrangement.

First of all it is impossible to assume a risk that you do not know about or fully understand. Secondly, When you are “recruited” and persuaded by powerful institutions with multi-million dollar budgets to come play sports for them; it is not an at arms length negotiation.  There is a massive imbalance of power.  Just because a kid may assume some risk by participating doesn’t mean that the NCAA is free from liability.  The NCAA should not just be able to wash their hands free of all responsibility for kids with permanent injuries.

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