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Protecting the Shield and Its Players: A Proposal for Internally Addressing Intentionally Inflicted NFL Injuries

MARK D. SZAL

INTRODUCTION
njuries, accidentally inflicted or otherwise, have always been a part of professional sports. Recent events in all four of the major professional American sports, however, have brought the subject of intentional injuries to the fore of sports and legal discussion once again. During the National Hockey League playoffs on April 17, 2012, Phoenix Coyotes forward Raffi Torres launched himself into the air and delivered a late hit to the head of Chicago Blackhawks star Marian Hossa, who was taken off of the ice on a stretcher. Based on the violence of the hit, severity of the injury, and his history of other illegal on-ice conduct, Torres earned an immediate twenty-five game suspension from the League (later reduced to twenty-one games on appeal).1 It is unclear whether the concussion Hossa received will affect his future play. Five days later, in the penultimate game of the National Basketball Association regular season, Los Angeles Lakers forward Metta World Peace (ne Ron Artest) threw a violent elbow to the head of Oklahoma City Thunders guard James Harden, dropping Harden to the court with a concussion. World Peace was ejected from the game and suspended seven games by the NBA, whose commissioner noted the danger posed by violent acts of this kind.2 Even baseball, not traditionally thought of as a

Associate, Bello Black & Welsh LLP; B.A., English and Philosophy, Boston College 1996; J.D., New England Law | Boston 2006.
1 See Kevin Allen, Coyotes Raffi Torres Suspended 25 Games for Hossa Hit, USA TODAY (Apr. 21, 2012), http://www.usatoday.com/sports/hockey/nhl/story/2012-04-21/raffi-torressuspension/54455286/1. 2 Cindy Boren, Metta World Peace Suspended Seven Games for Elbowing James Harden, WASH. POST (Apr. 25, 2012, 9:34 AM), http://www.washingtonpost.com/blogs/earlylead/post/metta-world-peace-suspended-seven-games-for-elbowing-james harden/2012/04/25/gIQAhCSkgT_blog.html.

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contact sport, has seen examples of intentional and potentially injurious acts. On May 6, 2012, Philadelphia Phillies pitcher Cole Hamels intentionally threw a pitch at Washington Nationals All-Star rookie Bryce Harper, striking him in the small of the back. Harper was not injured, stealing home a few pitches later in fact; but Hamels justified his admittedly premeditated actions as a traditional form of indoctrinating young players to the big leagues.3 The most widely discussed recent sports injury news, however, is the Bounty Scandal involving the New Orleans Saints of the National Football League, dubbed Bountygate.4 Beginning in 2009 upon the arrival of new defensive coordinator Gregg Williams, and continuing through the 2011 season, Saints defensive players allegedly maintained a pool of money, funded by the players and in some instances Williams himself, from which performance bonuses were paid for inflicting injuries on opposing players. Between twenty-two and twenty-seven Saints were alleged to have participated. Players would receive bonuses (typically $1,000) for cart-offs, a euphemism for an opposing player being taken off the field on a cart or stretcher, and knockouts, where an opposing player was unable to return to the game after being hit.5 Among the opposing players allegedly targeted were Minnesota Vikings quarterback Brett Favre, who was battered by the Saints defense in the 2009 NFC Championship Game, and Arizona Cardinals quarterback Kurt Warner, who one week earlier was knocked out of the game briefly with a chest injury. Favre returned the following season, his last in the NFL; Warner never played again. When news of Bountygate first broke, Hall of Fame quarterback, ESPN analyst, and lawyer Steve Young indicated that Saints opponents injured

3 See Gabe Lacques, Cole Hamels on Bryce Harper: I was trying to hit him, USA TODAY (May 6, 2012), http://content.usatoday.com/ communities/dailypitch/post/2012/05/cole-hamels-bryce-harper-hit-by-pitch/1. 4 See, e.g., Melissa Jacobs, Gregg Williams Must be Banned, ESPNW (Mar. 5, 2012, 5:59 PM), http://espn.go.com/espnw/commentary/7649400/former-new-orleans-saints-coordinatorgregg-williams-banned (stating that the Bountygate scandal is the single biggest issue of [the NFLs] time); Ryan Riddle, Ex-NFL Player Dishes on Bountygate Scandal, Roger Goodells Punishments, BLEACHER REPORT (June 29, 2012) http://bleacherreport.com/articles/

1233213-ex-nfl-player-dishes-on-bountygate-scandal-and-goodells-punishment (referencing Bountygate as the Saints highly publicized bounty scandal); Brandon Winkler, The NFL and Their Inconsistency with Bountygate and Player Fines, RANT SPORTS (Apr. 17, 2012, 4:48 PM), http://www.rantsports.com/new-orleans-saints/2012/04/17/the-nfl-and-their-inconsistencywith-bountygate-and-player-fines/ (referring to the Bountygate scandal as arguably one of, if not the biggest controversies to ever hit the NFL). 5 Toni Monkovic, N.F.L.s Full Report on Discipline for Saints, THE FIFTH DOWN: THE NEW YORK TIMES N.F.L. BLOG (Mar. 22, 2012), http://fifthdown.blogs.nytimes.com/2012/03/22/n-f-l-s-full-report-on-discipline-for-saints/.

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during the past three seasons would have grounds for a lawsuit, stating, if Im hurt against the Saints in the last couple years, Im suing the Saints.6 Other legal scholars have concurred with Youngs opinion.7 Players bringing lawsuits in connection with injuries on the playing fields are fairly rare occurrences, due in large part to the reluctance of courts to grant relief as a result of a lower standard of care, affirmative defenses such as assumption of the risk and consent, and unwilling plaintiffs fearing ostracism or retaliation.8 This trend may be reversed in the coming years with respect to the NFL, however, primarily because of the confluence of several commonalities in professional football today: concussions, a focus on player safety, and lawsuits. It was only in 2002 that an NFL players game-related brain injury was first linked to a diagnosed case of dementia.9 Now, as of July 2012, ninetynine lawsuits involving concussions have been filed against the NFL and its teams, encompassing more than 2,600 former players.10 A 2012 class action filed by former players, which consolidated many of the lawsuits, accused the NFL of negligence and fraudulent concealment in failing to disclose the true risks of repeated traumatic head impacts in NFL football,
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Michael David Smith, Steve Young Thinks Players Who Were Injured Should Sue the Saints, NBC SPORTS PRO FOOTBALL TALK (Mar. 5, 2012), http://profootballtalk.nbcsports.com/2012/03/05/steve-young-thinks-players-who-wereinjured-should-sue-the-saints/.
7 See, e.g., Judy Battista, Teams Could Be Held Liable for Injuries Traced to Bounties, N.Y. TIMES, (Mar. 4, 2012), http://www.nytimes.com/2012/03/05/sports/football/nfl-bounties-couldlead-to-lawsuits.html?_r=0.

Chris J. Carlsen & Mathew Shane Walker, The Sports Court: A Private System to Deter Violence in Professional Sports, 55 S. CAL. L. REV. 399, 407-14 (1982).
9 See Legal Issues Relating to Football Head Injuries (Part I & II): Hearings Before the H. Comm. on the Judiciary, 111th Cong. 328 (2010) [hereinafter Legal Issues Relating to Football Head Injuries (Part II)] (Testimony of Bennet I. Omalu, M.D., Co-Director, Brain Injury Research Institute, W. Va. Univ.), available at http://judiciary.house.gov/hearings/printers/111th/11182_53092.pdf. Doctor Bennet I. Omalu of the Brain Injury Research Institute discovered the first case of dementia in an NFL football playerwhich he named Chronic Traumatic Encephalopathy (CTE)after performing an autopsy on the brain of Pittsburgh Steelers Hall of Famer Mike Webster in 2002. Id. Since that time, debate has ensued after the suicides of former NFL players cast light on the potential connection between head trauma and CTE. See Michael OKeeffe, Race to Study Seaus Brain, NEW YORK DAILY NEWS (May 3, 2012), http://articles.nydailynews.com/2012-05-03/news/31560567_1_traumatic-encephalopathy-seaufamily-brain-injury-research-institute. In the midst of this, while not accepting the causal connection of concussions and brain injuries to dementia, the NFL has placed an increased emphasis on player safety. See Legal Issues Relating to Head Injuries (Part II), 111th Cong. at 3132, 35 (Statement of Roger Goodell, Commr, Natl Football League) (emphasizing the NFLs commitment to the safety and welfare of . . . those individuals who play our sport, and conceding that head injuries may play a role in causing brain injuries). 10 Paul Anderson, The Concussion Lawsuit Shuffle, NFL CONCUSSION LITIGATION (July 3, 2012), http://nflconcussionlitigation.com/?p=930.

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and failing to take appropriate steps to prevent and mitigate repeated traumatic head impacts (including sub-concussive blows and concussions) and latent brain injury.11 Adding to the alarm amongst players, a recent study also found that NFL players were approximately three times more likely to die from degenerative brain conditions such as Alzheimers disease, Parkinsons disease, and Lou Gehrigs disease than the general population.12 Given this backdrop, it appears inevitable that even if not specifically related to Bountygate, lawsuits against opposing NFL players (and their teams) in connection with intentionally or recklessly13 inflicted concussions and other injuries may be the next source of litigation. This article briefly examines how courts have traditionally dealt with such civil lawsuits,14 discusses previous proposals for dealing with such incidents, and suggests a sensible approach for the NFLechoing some pieces from previous proposalswhich will serve to compensate those injured, penalize those inflicting intentional injuries (or those responsible for them), keep these controversies out of an overburdened court system, and ultimately improve player safety without detracting from the fierce competition that makes the NFL one of the countrys most popular sports leagues. I. Treatment of Intentionally Inflicted Injuries by the Courts

Almost forty years ago, Denver Broncos defensive back Dale Hackbart was injured during a game against the Cincinnati Bengals.15 After a Bronco interception, Hackbart attempted to block Bengals fullback Charles Boobie Clark, who had become a defender as a result of the change of possession. Hackbart, who remained on the ground after the attempted block, was struck in the back of the head and neck by Clark, who reacted to

11 Master Administrative Class Action Complaint for Medical Monitoring and Original Class Action Complaint at 4, 54-55, In re Natl Football League Players Concussion Injury Litig., (E.D. Pa. June 7, 2012), No. 2:12-md-02323-AB, available at http://nflconcussionlitigation.com/wp-content/uploads/2012/01/download-102.pdf. 12 Malcolm Ritter, Study: Brain Disease Deaths High in NFL Veterans, BOSTON GLOBE (Sept. 8, 2012), http://www.boston.com/lifestyle/health/2012/09/08/study-brain-disease-deaths-highnfl-veterans/iInOKJDg6MtpZCM8QhZAUJ/story.html. 13 For the purposes of this article, the term intentional is to be viewed as encompassing both intentional and reckless conductthe likely governing standard. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 524-25 (10th Cir. 1979). 14 This article does not examine potential criminal implications. For commentary of criminal liability, see, e.g. Gregory Schiller, Are Athletes Above the Law? From a Two-Minute Minor to a Twenty Year Sentence: Regina v. Marty McSorley, 10 SPORTS LAW. J. 241, 250-57 (2003) (describing the challenges of prosecuting professional athletes for criminal acts committed on the playing field). 15 Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352, 353 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. 1979) [hereinafter Hackbart I].

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the likelihood of a Bengals loss with sudden frustration and anger. Although he played the next two Sundays, Hackbart was released by the Broncos thereafter, and never played professional football again. Weeks later, Hackbarts doctors discovered that he had suffered a serious neck fracture.16 Hackbart brought claims of negligence and reckless misconduct, as well as contractual claims, against Clark and the Bengals; but a claim of intentional misconduct was barred by the applicable Colorado statute of limitations. Following trial, the United States District Court for the District of Colorado entered judgment for the defendants, holding that Hackbart recognized and accepted the risk that he may be injured due to the level of violence and the frequency of outbursts in NFL football games.17 The court also rejected Hackbarts assertion that failure to conform to the rules and regulations of the game, pursuant to standard player contracts, could result in a third-party beneficiary contractual claim; [t]o hold otherwise would create a potential for contract liability for every infraction of every playing rule.18 In dicta, Judge Richard Matsch also made a point to address social policy: specifically, whether on-field incidents in professional football should become a subject for the business of the courts.19 Footballa lawful game receiving the implicit approval of governmentis a game in which the restraints of civilization have been left on the sidelines,20 and Judge Matsch felt that courts would become entangled in a dense thicket if they were asked to apportion liability in that arena. When considering the recent NFL concussion litigation, the court prophetically recognized that the volume of litigation would become enormous. Further, Judge Matsch noted that subjective analysis of NFL contests could result in different court systems adopting differing and conflicting principles, subjecting players to different standards of conduct on a weekly basis. The United States Court of Appeals for the Tenth Circuit reversed, holding that the result reached by the trial court was not supported by the evidence.21 Specifically, the court held that there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game,22 and that it was highly questionable

Id. at 353-54 (noting that pursuant to an injury clause in his contract, Hackbart received full payment for the 1973 season after the injury was discovered). 17 Id. at 356. 18 Id. 19 Id. at 357. 20 Hackbart I, 435 F. Supp. at 358. 21 See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 526-27 (10th Cir. 1979) [hereinafter Hackbart II].
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Id. at 520.

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whether NFL players consent to injuries not within the rules of the game.23 Either the theory of recklessness or assault and battery could be brought forth based on the circumstances, with the distinguishing quality being that recklessness involves the intent to do the particular act without intent to cause the particular harm. With respect to Judge Matschs policy discussion, the Tenth Circuit recited the well-settled principle that a federal court does not have discretion to accept or reject jurisdictionif it has it, it must take it.24 The court also hinted that it was loathe to rule upon these questions outside of any preexisting obligation.25 While few NFL players have availed themselves of the courts in bringing actions against opponents for intentional on-field injuries, other sports have seen similar claims. In 1998, the Missouri Court of Appeals held that a body check suffered by professional hockey goalie Stephen McKichan was part of the game and not outside the realm of reasonable anticipation, even where it occurred after the whistle was blown and was contrary to the established rules.26 In reversing the trial courts judgment in McKichan, the court ruled that the conduct at issue was not actionable, noting that professional sports (as opposed to amateur) are played by highly-skilled athletes who are financially compensated with full knowledge of the rules. The court also stressed the inherent customs and risks in a sport where rough and even violent play is common, and that [p]layers regularly commit contact beyond that which is permitted by the rules.27 Another such hockey case,28 in which $38 million is sought in damages, is scheduled for trial in January, 2013.29 In 2004, Vancouver Canucks forward Todd Bertuzzi punched Colorado Avalanches player Steve Moore from behind and slammed him to the ice. Moore suffered a concussion, several broken vertebrae, and never played again.30 Allegations are circling that the incident was the result of a bounty placed on Moore by the Canucks as the result of an earlier game between the teams.31 To that end,
Id. Id. at 521. 25 See id. (Questions may occur, which we would gladly avoid; but we cannot avoid them. (quoting Cohens v. Virginia, 19 U.S. 264, 404 (1821))). 26 McKichan v. St. Louis Hockey Club, 967 S.W.2d 209, 213 (Mo. Ct. App. 1998). 27 Id. 28 Steve Simmons, Bertuzzi-Moore Case Could Be Riveting, TORONTO SUN (July 21, 2012), http://www.torontosun.com/2012/07/21/bertuzzi-moore-case-could-be-riveting. 29 Jeff Z. Klein, Bertuzzi Trial Delayed, N.Y. TIMES (July 28, 2012), http://www.nytimes.com/2012/07/29/sports/hockey/todd-bertuzzi-trial-delayed.html.
24 30 A Star Player Goes Offside, CBC SPORTS ONLINE (Feb. 15, 2005), http://www.cbc.ca/sports/indepth/bertuzzi/. 31 Lester Munson, NFL Cautionary Tale: Todd Bertuzzi, ESPN.COM (Mar. 15, 2012), http://espn.go.com/espn/commentary/story/_/page/munson-120315/todd-bertuzzi-hit-steve23

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Bertuzzi initially asserted the A Few Good Men defensethat he was merely following orders of his coach, Marc Crawford.32 The trial promises to be the featured event on the hockey calendar, featuring former players and coaches testifying against each other, where [t]he league and the sport will essentially be on trial.33 NHL Commissioner Gary Bettman has unsuccessfully attempted to broker a settlement between the parties,34 and the lawsuit has been described as a cautionary tale for the NFL.35 II. The Current State of Penalization and Compensation for NFL Players NFL policy concerning illegal on-field conduct is focused on penalization rather than compensation. The League disciplinary rules empower the Commissioner to impose fines and other appropriate discipline, up to and including suspension or banishment from the League, for certain misconduct on the playing field.36 Minimum fines range from $7,500 to $25,000 for offenses such as: striking, kicking, or kneeing; impermissible use of the helmet; late hits; hits on a defenseless receiver; and fighting.37 According to NFL Charities, money collected from on-field fines, which has netted an average of $4 million annually over the past four years, is charitably donated to programs for retired players via the NFL Player Care Foundation and the NFL Player Associations Players Assistance Trust.38 None of the fine money goes directly to those who suffer injuries as a result of injury-producing, finable conduct. Some NFL players have questioned the distribution of fine money, although not specifically suggesting that the money should be earmarked for injured players.39 There are limited provisions that provide compensation to players injured by intentional acts. NFL players may be released at any time for virtually any reason and would only be entitled to money guaranteed in their contract with respect to skill, injury, or the salary cap. By way of

moore-2004-cautionary-tale-new-orleans-saints-bounties. Id. Simmons, supra note 28. 34 Rick Westhead, Bertuzzi Offered Moore $350,000, THE STAR (Nov. 6, 2007), http://www.thestar.com/sports/article/273827. 35 Munson, supra note 31. 36 League Discipline, NATL FOOTBALL LEAGUE, at 1, http://nfllabor.files.wordpress.com/2011/09/2011-league-discipline.pdf (last visited Oct. 17, 2012). 37 Id. at 16. 38 Fine Money, NFL CHARITIES, http://www.nflcharities.org/fundraising/fine_money (last visited Oct. 17, 2012).
33 39 See Where Does On-Field Fine Money Go?, NFL COMMUNICATIONS (Dec. 22, 2010), http://nflcommunications.com/2010/12/22/where-does-on-field-fine-money-go/. 32

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example, in March 2012, Denver Broncos quarterback Peyton Manning signed a five-year, $96 million contract. According to the reported terms, the first three years of the contract ($58 million) are fully guaranteed (except with respect to Mannings pre-existing neck injury); the last two years ($38 million) are not guaranteed.40 Had Manning suffered a careerending injury in the first week of the 2012 season, both the player and the team would have lost substantiallywithout effective means for redress in the event that the injury was intentional. Manning would likely have lost out on the last two, non-guaranteed years of his deal,41 while the Broncos would have been obligated to pay him for three years during which he would be unavailable to the team. The NFLs Collective Bargaining Agreement (CBA)42 also provides for an injury protection benefit. Eligible players43 are now guaranteed 50% of their salary, up to a maximum of $1 million, if they have a contract in place for the season following an injury. In the second year after injury, eligible players are guaranteed 30% of their salaryup to a maximum of $500,000provided a contract is in place. While significantly more benefits are provided in the new CBA, the benefits would likely be little consolation to highly-paid players like Manningleft with a small fraction of what he would have been entitled to as an active player. Further, the team of the

40 Mike Klis & Jeff Legwold, Peyton Mannings $96 Million Deal with Broncos Includes Neck Injury Clause, DENVER POST, http://www.denverpost.com/broncos/ci_20213659/peytonmannings-deal-broncos-5-years-96-million (last updated Mar. 20, 2012, 8:32 PM).

Due to a neck injury, which prevented him from playing during the 2011 season, the Indianapolis Colts released Manning. Had the Colts not released him, Manning would have been entitled under his contract to, among other things, a $28 million roster bonus and a $7.4 million salary in 2012. See generally Curtis Eichelberger, Manning to Be Released by Colts: ESPN, BLOOMBERG (March 7, 2012), http://www.bloomberg.com/news/2012-03-07/manning-losing-toluck-as-espn-says-colts-won-t-pay-28-million-bonus.html. 42 NFL & NFL Players Assn, Collective Bargaining Agreement, Art. 45, 200-04 (Aug. 4, 2012), available at http://images.nflplayers.com/mediaResources/files/PDFs/General/2011_Final_CBA.pdf (discussing in part further provisions to ensure player safety, including reduction of the offseason program by five weeks, limiting on-field practice time and contact in the preseason and regular season, and increasing the number of days off for players).
43 Id. at 200. Benefits are available to a player who: (1) suffers an injury in an NFL game or practice that causes him to be unable to play in all or part of the last game of the season of injury or that results in club-authorized offseason surgery; (2) undergoes reasonable and customary club-required rehabilitation in the offseason following the injury; and (3) fails the clubs preseason physical for the season following the injury and his contract is terminated. The NFL is required to provide the Players Association with a list of potentially eligible players after each season ends. Khalil Garriott, NFL Provides NFLPA with Players Potentially Eligible for Injury Protection Benefit, PRO PLAYER INSIDERS (June 13, 2012), http://www.proplayerinsiders.com/nflpa-receives-information-on-players-eligible-for-newinjury-protection-benefit/.

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injured player is obligated to pay the injury benefit amount, not the player who may have inflicted an intentional injury. Other means of compensation include insurance or workers compensation benefits. Some players, particularly those in the last years of a contract44 or college prospects slated to be picked highly in the NFL draft,45 have chosen to protect themselves with insurance policies. However, among professional players it is uncommon, particularly in consideration of the potentially astronomical premiums required.46 While available in certain circumstances, workers compensation benefits may be limited in comparison to player salaries, and subject to different standards depending on the governing law.47 III. Previous Attempts and Proposals for Reform As the Hackbart trial court observed, [t]o compensate the injured at the expense of the wrongdoer, the courts have been compelled to construct principles of social policy.48 Though common law has evolved to affect human behavior, the NFL has not been so compelled to date. Thirty years ago, a proposal was made to form a Sports Court, which could be established through a Leagues CBA or through federal legislation and would essentially consist of arbitration proceedings.49 A neutral, threemember board of experts would resolve injury grievances filed by injured players and their teams against the injuring player and his team, and penalty grievances, addressing violent conduct that did not produce an injury.50 With respect to injury grievances, the team of a player causing injury through violent conduct would be required to pay: (1) the salary of

44 In 2011, Philadelphia Eagles wide receiver DeSean Jackson took out a multi-million dollar, one year policy against injury while negotiating an extension to his expiring contract. Jeff McLane, DeSean Takes Out Insurance Policy, PHILLY.COM (Sep. 15, 2011), http://www.philly.com/philly/blogs/inq-eagles/DeSean-takes-out-insurance-policy.html. 45 NFL running back Willis McGahee took out a $2.5 million insurance policy on the eve of his last college game. Mike Fish, A $2.5 Million Safety Net, SPORTS ILLUSTRATED (Jan. 10, 2003),

http://sportsillustrated.cnn.com/inside_game/mike_fish/news/2003/01/10/straight_shooting/. 46 Elizabeth Fiedler, Do Pro Teams and Players Take Out Insurance Against Injuries?, NEWSWORKS (Sep. 26, 2011), http://www.newsworks.org/index.php/local//region/27181-dopro-teams-and-players-take-out-insurance-against-injuries. 47 Former Pittsburgh Steelers tight end Mitch Lyons filed for workers compensation after suffering a career-ending injury in 1999. Because of controlling Pennsylvania law, Lyons, who made $400,000 per year, received $117 per week in benefits. Lyons v. Workers Comp. Appeal Bd., 803 A.2d 857, 859 (Pa. Commw. Ct. 2002). 48 Hackbart I, 435 F. Supp. 352, 357 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. 1979). 49 See Chris J. Carlsen & Mathew Shane Walker, The Sports Court: A Private System to Deter Violence in Professional Sports, 55 S. CAL. L. REV. 399, 414 (1982).
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Id. at 414-15.

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the injured player for the period of time that he is unable to play; (2) medical expenses; and (3) damages if the injury prevents the player from returning to play in later seasons. In addition, the panel would be empowered to also punish the offender by levying fines and/or suspensions. Other commentators have agreed that sports torts belong outside of the courtroom, but have suggested more traditional methods of alternative dispute resolution.51 Often when there is a newsworthy event implicating a violation of the rules of professional sports, there is a call for government involvement. Putting aside the fact that those in Washington cannot seem to come together to effect change or move forward in any area, it appears that legislators have more recently acceded to the view that they have more important priorities, and that professional leagues can adequately address issues affecting their game and players.52 The Sports Arbitration Act of 1983, introduced by then South Dakota Representative Tom Daschle, attempted to form an arbitration board that would function as a sports court, arbitrating grievances between players and providing monetary damages for violent, injury-producing, on-field acts.53 The Act did not become law, likely because of perceived reluctance of players to file actions and difficulties of administration. Later proposals called for federal legislation to create a National Sports Policy Commission, consisting of presidentially-appointed members who would be empowered to, among other things, award financial compensation to injured players. One of the perceived advantages of the proposal was that players would not need to file a lawsuit and fear blacklisting as a result of breach of the games unwritten code between players.54 In the past decade, Congress became intimately involved with the steroid scandal in professional baseball. More recently, however, politicians have largely resisted their innate temptations to insert themselves into remedying questionable conduct in other sports. Although the late Senator Arlen Specter initially called for hearings on the so-called Spygate scandal in 2007, involving the New England Patriots videotaping signals of opposing teams, he later backed off, noting that Congress had too many other big problems to deal with.55 Senator Dick

51 See, e.g., Jeffrey M. Schalley, Eliminate Violence from Sports Through Arbitration, Not the Civil Courts, 8 SPORTS L.J. 181, 183, 189 (2001).

See Clete Samson, No Time Like the Present: Why Recent Events Should Spur Congress to Enact a Sports Violence Act, 37 ARIZ. ST. L.J. 949, 962-63 (2005). 53 Id. at 960-61. 54 Kevin A. Fritz, Going to the Bullpen: Using Uncle Sam to Strike Out Professional Sports Violence, 20 CARDOZO ARTS & ENT. L.J., 189, 227 (2002).
55 Specter Says Hes Too Busy for Spygate Probe, ESPN.COM (June 17, 2008), http://sports.espn.go.com/espn/print?id=3448051&type=story.

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Durbin initially suggested hearings be held in the wake of Bountygate to address whether federal legislation was necessary, later retreating based on his view that the NFL had itself addressed the issue adequately.56 These realizations, coupled with the publics apparent disdain for legislative involvement in these areas and general fatigue relating to tax dollars being spent on sports-related issues,57 pave the way for the NFL to establish its own internal regulatory systems of compensation and penalization, and avoid public Bertuzzi-like lawsuits that could put the game itself on trial. IV. A Proposal for an Internal NFL Mechanism for Compensation As was true at the time of Hackbart, the NFL has a constitution and bylaws that provide for substantial control of teams and players by League officers and committees. Also unchanged is the fact that the CBA provides for an injury grievance procedure to resolve disputes between a player and team, but not one for disputes between players of different teams.58 With respect to punishment for conduct in violation of League rules, the current system of League discipline, largely in the form of fines, does not appear to be serving as a deterrent,59 often because a players salary dwarfs the fines assessed.60 Even larger and repeated fines have not altered

56 Tomer Ovadia, Goodell, Durbin Talk NFL Bounties, POLITICO.COM (June 20, 2012), http://www.politico.com/blogs/on-congress/2012/06/goodell-durbin-talk-bounties126842.html. 57 See Tim Keown, Theres Never Been a Better Time to Fail a Steroid Test, ESPN THE MAGAZINE, (June 14, 2012), http://espn.go.com/mlb/story/_/id/8038232/ryan-braun-provesfans-care-less-less-steroid-use-espn-magazine (describing how in the context of performanceenhancing drugs in baseball, once a national focus, outrage [has been] replaced by fatigue, with jurors even nodding off during the Clemens trial, the steroid trial of the century); Joseph White, Roger Clemens Trial: Jury Selection Dragging On Ahead of Perjury Case of Ex-MLB Star, HUFFINGTON POST (Apr. 18, 2012), http://www.huffingtonpost.com/2012/04/18/rogerclemens-jury-selection-perjury-trial_n_1433949.html (describing how one dismissed juror in the second perjury trial of former major league pitcher Roger Clemens commented during voir dire that lawmakers should be doing more important things than investigating steroid use in professional baseball). 58

See Hackbart I, 435 F. Supp. 352, 354 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. See Jamison Hensley, Steelers James Harrison Just Isnt Learning, ESPN.COM (Dec. 9, http://espn.go.com/blog/afcnorth/post/_/id/37577/steelers-james-harrison-just-isnt-

1979).
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2011), learning.
60

Bill Romanowski was fined $10,000 for a helmet-to-helmet hit on Tampa Bay quarterback Trent Dilfer on September 26, 1999. Later in the season, Romanowski earned an identical fine for an illegal hit to the head of tight end Tony Gonzalez of the Kansas City Chiefs. Regarding the prospect of a fine after the hit, Romanowski said to Gonzalez, I dont care. Ive got a lot of money. Stephen Nidetz, Romanowski is Fined Again for Illegal Hit on Gonzalez, CHICAGO TRIBUNE (Dec. 19, 1999), http://articles.chicagotribune.com/1999-1219/sports/9912190184_1_fined-denver-linebacker-bill-romanowski-illegal. Between the two

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player conduct.61 Inconsistency of fines is also a problem.62 Suspensions have been few during Commissioner Roger Goodells tenure. In fact, as of the start of the 2012 season, only three players have been suspended for onfield conduct during Goodells six year tenure as commissioner: James Harrison of the Pittsburgh Steelers (for a hit on Cleveland Browns quarterback Colt McCoy), Ndamukong Suh of the Detroit Lions (for stomping Green Bay Packers lineman Evan Dietrich-Smith), and thenTennessee Titan Albert Haynesworth (for stomping the head of Dallas Cowboys lineman Andre Gurode).63 During this time, Goodell has imposed numerous suspensions for off-field incidents that violated the NFLs personal conduct policy. Going forward, suspensions and ejections should be the preferred method of discipline for on-field conduct.64 Instead of mere fines, the NFL could implement a program of progressive discipline as well as more frequent ejections for flagrant acts of aggression just as the National Basketball Association did in 2005 in the wake of a brawl involving players and spectators.65 Under the NBA policy, players are automatically

incidents, Romanowski is alleged during pre-game warm ups to have said to Minnesota Vikings wide receiver Cris Carter, Im gonna end your career, Carter. Cris Carter Admits to Bounties, ESPN.COM (May 9, 2012), http://espn.go.com/nfl/story/_/id/7907610/cris-carterformerly-minnesota-vikings-admits-authorizing-bounties. 61 See Associated Press, Lions' Suh Incredulous After $20K NFL Fine, USA TODAY (Aug. 17, 2011, 9:40 PM), http://www.usatoday.com/sports/football/nfl/lions/2011-08-17Ndamukong-Suh-fine_n.htm (explaining that Detroit defensive tackle Ndamukong Suh would not change the way he plays by any means, despite being fined $60,000 in less than a year); see also Peter King, Monday Morning Quarterback, SPORTS ILLUSTRATED (Aug. 20, 2012), http://sportsillustrated.cnn.com/2012/writers/peter_king/08/19/mmqb/index.html#ixzz26SCkT qSe (noting that the NFL CBAs provision to increase fines did not stop Philadelphia Eagles Dominique Rodgers-Cromartie, who was unrepentant after being slapped with a $21,000 fine for illegally hitting Pittsburgh Steelers quarterback Byron Leftwich in the head).
62 See Brian Urlacher Rips NFL Over Fines, Flags: 'It's Very Frustrating For Me,' HUFFINGTON POST (Nov. 4, 2011, 10:50 AM), http://www.huffingtonpost.com/2011/11/04/brian-urlacher-nfl-fines-flags_n_1075646.html. 63 See Steve Silverman, Saints Penalties Usher in New NFL Era, CBS CHICAGO (Mar. 22, 2012), http://chicago.cbslocal.com/2012/03/22/silverman-saints-penalties-usher-in-new-nfl-era/. 64 According to Rodney Harrison, a former NFL safety who was often described as one of the dirtiest players in the league, suspensions get the attention of players and affect the way they play the game, but fines do not. Harrison was fined and suspended during his career, but noted that he would accept fines in order to become a recognized star; suspensions made him change things up because he was hurting his team and losing a game check. Vic Carucci, Rodney Harrison: Suspensions Only Way to Stop Vicious Hits, NFL.COM (Oct. 19, 2010, 9:42 PM), http://www.nfl.com/news/story/09000d5d81b76c8b/article/rodney-harrison-suspensions-onlyway-to-stop-vicious-hits.

Marc Stein, NBA Will Review Technical Foul Rules, ESPN.COM (June 5, 2009), http://sports.espn.go.com/nba/playoffs/2009/news/story?id=4229989&campaign=rss&source= NBAHeadlines (noting that he NBA assesses fines along with suspension and ejection

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suspended for one game once they receive a certain number of technical fouls;66 players are ejected from games after two technical fouls or certain flagrant fouls.67 While penalization for illegal on-field acts should likely be modified, it does not address compensation for those who may suffer injuries as a result.68 Recently, players who have been subject to illegal hits particularly those who suffered concussions as a resultare slowly beginning to realize the effect that these types of hits have on their playing careers, earning potential, and lives.69 Establishing an internal NFL procedure to adjudicate claims of intentionally inflicted injuries between opposing players will prevent these controversies from ending up in the courts, and should serve as a further deterrent to reduce illegal hits and resulting injuries. The goal should not be, as has been suggested by other commentators, to reduce or eliminate violence in the NFL.70 Indeed, a certain amount of violence within the confines of the rules (and sometimes even beyond that) is expected and essential to vigorous competition in the NFL and is a part

penalties).
66 Id. In the NFL context, this would also give more teeth to the Leagues attempt to curtail less egregious conduct, such as end zone demonstrations. If these were viewed in the context of a technical foul, with a certain number resulting in suspension, players would more carefully consider their post-touchdown conduct. But players often mock such fines. Former Miami Dolphins wide receiver Chad Ochocinco (who only reached the end zone one time last season), expected a reversal of fortune this season, tweeting to Goodell in the offseason, I love u but I will be a problem this year.. all fine money this year can be collected from @MiamiDolphins #management. Izzy Gould, Miami Dolphins WR Chad Ochocinco Tweets at NFL Commissioner Roger Goodell, SUNSENTINEL (June 26, 2012), http://articles.sunsentinel.com/2012-06-26/sports/sfl-miami-dolphins-wr-chad-ochocinco-tweets-at-nflcommissioner-roger-goodell-i-will-be-a-problem-this-year-20120626_1_chad-ochocinco-stweets-chad-johnson-nfl-commissioner. Ochocinco was cut by the Dolphins before the season began. 67 See NATL BASKETBALL ASSN, NBA OFFICIAL RULES 2011-2012, RULE 12A, 5(b), RULE 12B, 4(a), available at http://www.nba.com/.element/mp3/2.0/sect/podcastmp3/PDF/2011-12NBA-RULE-BOOK.pdf (last visited Oct. 18, 2012). The NBA has a two-tiered rating of flagrant fouls, the higher of which earns immediate ejection. 68 See Hackbart I, 435 F. Supp. 352, 357 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. 1979) (The only protection which NFL contract players have beyond self-defense and real or threatened retaliation is that which is provided by the league rules and sanctions. It may well be true that what has been provided is inadequate and that these young athletes have been exploited and subjected to risks which should be unacceptable in our social order.). 69 Peter King, The Hits that are Changing Football, SPORTS ILLUSTRATED (Nov. 1, 2010), http://sportsillustrated.cnn.com/vault/article/magazine/MAG1176374/index.htm (noting that some helmet-to-helmet hits are legal under NFL rules, such as hits on an open field ball carrier). 70 See Chris J. Carlsen & Mathew Shane Walker, The Sports Court: A Private System to Deter Violence in Professional Sports, 55 S. CAL. L. REV. 399, 414 (1982).

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of the game. Players and fans do not want the NFL turned into the National Flag Football League.71 Rather, the goal should be to eliminate intentional and illegal hits by punishing offenders in a fashion that will encourage deterrence, while at the same time compensating the injured, be it a team or an individual. To this end, the NFL should create an Injury Review Board which would be empowered to determine liability and assess damages in bifurcated phases. This program could be implemented through player contracts and/or the CBA, and would serve as a quasiarbitration proceeding that would be the sole remedy for on-field injuries to teams and players. Further, this program would likely keep such controversies out of the court system, which typically hesitate[s] before intervening in disciplinary hearings held by private associations . . . [except] in the most extraordinary circumstances.72 A. The Liability Phase In the initial liability phase, a Liability Board would be comprised of an independent panel, jointly paid for by the League and the Players Association,73 consisting of three members: a former defensive player, offensive player, and official.74 Preferably, the former players would have played the positions of the injured and injuring parties respectively. All members of the Liability Board would have been active within the last ten years, so that they will have a better perspective on the current state of the game and resist the urge to wax poetic about the leather helmet days and how different things were when they played the game.75 The Liability

71 Sean Leahy, Brian Urlacher on new NFL discipline: 'Let's make it the National Flag Football League', USA TODAY (Oct. 20, 2010, 2:53 PM), http://content.usatoday.com/communities/thehuddle/post/2010/10/brian-urlacher-on-new-nfldiscipline-lets-make-it-the-national-flag-football-league/1#.UBQaF7RO-uI. 72 Slaney v. Intl Amateur Athletic Fedn, 244 F.3d 580, 595-96 (7th Cir. 2001) (alteration in original) (quoting Harding v. U.S. Figure Skating Assn, 851 F. Supp. 1476, 1479 (D. Or. 1994)). See also Order Granting Defendants Motion to Dismiss at 21-22, Armstrong v. Tygart, No. 1:12-cv-00606-SS (W.D. Tex. 2012), available at http://online.wsj.com/public/resources/docu

ments/armstrong.pdf (agreeing with the reasoning of Slaney and Harding in granting defendants motion to dismiss).
73 Similar appeals of fines and suspensions currently heard and decided by Art Shell, Oakland Raiders Hall of Fame player, and former coach Ted Cottrell, are paid jointly. Safety Rules and Regulations, NFL HEALTH & SAFETY,

http://www.nflevolution.com/article/safety-rules-038-regulations?ref=258 (last visited Oct. 17, 2012). Some players have suggested such a panel. See Brian Urlacher No Fan of Hits Policy, ESPNCHICAGO (Dec. 2, 2010, 8:11 PM), http://sports.espn.go.com/chicago/nfl/news/story?id=5871233. 75 Similar to traditional arbitration proceedings, board members would need to assert that they have no conflict of interest preventing them from being impartial.
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Board would review, among other things, videotape of the incident, applicable rules, and statements made by the parties after (and perhaps before) the incident.76 It would also be able to hear testimony from the players in question, from the game officials, and from the coaches. The Liability Board would be empowered to consider evidence that may not typically be admissible in a court proceeding, such as prior bad acts of the offender, and would not need to be educated on the general nature of rough play in the NFL.77 Importantly, review by the Liability Board would not require a player or team to file a grievance: it would be automatic. Where players and teams have typically been reticent to file claims for injuries because of the perceived stigma, automatic review would eliminate this concern. As a supplement to the list of players submitted at the end of the season who may qualify for Injury Benefit Protection, players who were injured by potentially intentional conduct would also be identified. At that point, the Liability Board could convene regarding those incidents. Take for instance the Harrison-McCoy incident.78 At the end of the 2011 season, McCoy would have been listed as a player injured by a potentially intentional hit. During the offseason, the Liability Board would convene. Imagine a Board consisting of former linebacker Willie McGinest, former quarterback Kurt Warner, and former official Johnny Grier. The Board would review tape of the incident; question Harrison, McCoy, the in-game officials, and the coaches; and consider the NFL rules as well as its customs. It could consider Harrisons history with respect to such hits, but also potential justifications for Harrisons belief that the hit was legal.79 At

76 The governing rules would largely follow those of the American Arbitration Association, which are sufficiently robust to satisfy the requirements of Due Process despite speculation of panel bias, narrow discovery, and limited judicial review. See Order Granting Defendants Motion to Dismiss at 21-22, Armstrong v. Tygart, No. 1:12-cv-00606-SS (W.D. Tex. 2012), available at http://online.wsj.com/public/resources/documents/armstrong.pdf. 77 See Hackbart II, 601 F.2d 516, 526 (10th Cir. 1979) (directing trial court on remand to carefully scrutinize admission of prior violent acts by Clark and films depicting general NFL violence consistent with Fed. R. Evid. 401). 78 In 2010, James Harrison of the Pittsburgh Steelers was fined $125,000, 60% of which was earned for an illegal helmet-to-helmet hit on Cleveland Browns receiver Mohamed Massaquoi. In 2011, Harrison employed the same illegal hit on Browns quarterback Colt McCoy. Jamison Hensley, Steelers James Harrison Just isnt Learning, ESPN.COM (Dec. 9, 2011, 8:00 AM), http://espn.go.com/blog/afcnorth/post/_/id/37577/steelers-james-harrison-just-isntlearning. 79 Harrison believed that the hit was legal, and was quoted as saying: From what I understand, once the quarterback leaves the pocket, hes considered a runner. All the defenseless[ness] and liberties that a quarterback has in the pocket are gone and you can tackle him just as hes a running back. Mike Florio, Harrisons Hit on McCoy Could Fall into Gray Area of Rulebook, comment to Pro Football Talk, NBC SPORTS (Dec. 9, 2011, 8:05 AM), http://profootballtalk.nbcsports.com/2011/12/09/harrisons-hit-on-mccoy-could-fall-into-gray-

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the conclusion of hearing evidence, the Liability Board would issue a determination: Harrison was liable for an intentional hit on McCoy, was not liable, or assess some percentage of liability (i.e., Harrison was 50% liable because the hit was intentional, but was the product of Harrisons sincere yet incorrect belief that it was within the rules). This liability process has several advantages. First, it provides for a more balanced approach as to which hits should incur liability and which are merely part of the game. A jury of twelve persons, many of which would likely not be familiar with the game, should not be asked to decide complex questions of NFL liability. Players who have been recently in the trenches are the best judge of liability, not League administrators.80 Further, players who are accused of intentional, injury-producing hits will feel that they are being judged by more of a jury of their peers, rather than by a Commissioner that often serves as judge, jury, appeals court, and executioner.81 Finally, it will allow for injured players and their teams to have their day in court without having to file a lawsuit or even a grievance. The automatic nature of the proceedings will eliminate any accusations of a breach of the unwritten code of the NFL. Procedurally, it will be much more cost effective and expedient than a lawsuit,82 and will eliminate some of the hurdles that litigants often face,
area-of-ruleboo/.
80 After the 2010 weekend during which Harrison, Dunta Robinson, and Brandon Meriweather were all significantly fined for illegal hits, Urlacher said: There was one bad hit this past weekend: the Meriweather hit. The other two hits were legal hits. Robinson had a great hit. They were both running full speed. Sean Leahy, Brian Urlacher on New NFL Discipline: 'Let's Make it the National Flag Football League', USA TODAY (Oct. 20, 2010, 2:53 PM), http://content.usatoday.com/communities/thehuddle/post/2010/10/brian-urlacher-on-new-nfldiscipline-lets-make-it-the-national-flag-football-league/1#.UBQaF7RO-uI. Obviously, there may be difference of opinion among a panel, but this analysis appears to be more appropriate by those who have played the game and have a better understanding of its realities. 81 Peter King, Overwhelming Evidence Shared with Reporters in Saints Case, SPORTS ILLUSTRATED (June 19, 2012, 4:20 PM), http://sportsillustrated.cnn.com/2012/writers/peter_

king/06/18/new.orleans.saints.bounties/index.html (noting that Goodell handed down the penalties in the Bountygate case, and also heard the appeals). In fairness to Goodell, the players agreed to give him this power in the CBA. However, the player suspensions in connection with Bountygate were overturned by an arbitration panel, which found that the Commissioner did not have the authority to discipline the players on the stated grounds. See Sean Gregory, Bountygate Suspensions Overturned: Really a Victory for NFL Players?, TIME.COM (Sept. 7, 2012), http://keepingscore.blogs.time.com/2012/09/07/bountygate-suspensionsoverturned-really-a-victory-for-nfl-players/.
82 Consider that Hackbarts injury occurred in 1973. The trial concluded in 1977, and the appeal was decided in 1979. After an out-of-court settlement was reached in 1981, eight years after his career was ended by injury, Hackbart stated: I think the attorneys got more than I did. A.J. Perez, Bounty Issue Could be NFL Legal Problem, FOX SPORTS (Mar. 12, 2012, 12:52 PM), http://msn.foxsports.com/nfl/story/gregg-williams-new-orleans-saints-bountyissue-may-have-legal-implications-for-nfl-030812.

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including the mere fact that judges and juries who have never played the game would set precedents for what conduct on a NFL field is permissible.83 Of course, different determinations in different states would subject players like Harrison to varying standards on a weekly basis.84 This, coupled with the fact that court systems are currently overburdened and the public does not appear to have an appetite to make these determinations, makes an internal NFL system the best approach. As an internal system, the proceedings and determinations could also be private, as opposed to lawsuits and trials which are open to public scrutiny and which could put the game on trial. B. The Penalty Phase If the Liability Board finds liability, the process would move on to the penalty phase. The Penalty Board would be a separate panel of three persons: a former NFL general manager, an economist, and a former player agent. Similar to the composition of the proposed Liability Board, the goal is to balance the composition of the board with persons who are familiar with the economic realities of players and teams, with each board member providing a differing prospective. The Penalty Board would review the current effect of injuries, and potentially hear testimony from medical professionals who have examined injured players. The medical experts could then provide the Board with expert opinions regarding probable future medical conditions of the injured player. If the player is or was under contract at the time of the injury, his team would provide information regarding the players salary and the teams attendant loss of his services, in addition to any benefits (e.g., insurance) that may have been available to it to offset the loss. Assume that a Penalty Board adjudicated the Harrison-McCoy incident, after Harrison had been found 100% liable for the McCoy hit.85 As

83 Cf. Juliet Macur, Armstrongs Suit Against Anti-Doping Agency is Dismissed, NYTIMES.COM (Aug. 20, 2012), http://www.nytimes.com/2012/08/21/sports/lance-armstrongssuit-against-doping-agency-is-dismissed.html. In Lance Armstrongs recently unsuccessful suit against the United States Anti-Doping Agency, the court was unwilling to intervene in what it viewed as an internal dispute between an athlete and an athletic organization. Id. The court indicated that Armstrongs claims were best resolved internally, rather than to turn federal judges into referees for a game in which they have no place, and about which they know very little. Id. 84 Similar to the recent Armstrong ruling in which the court found that one nations court should not issue unilateral edits with respect to international sports, individual states should not determine what conduct is or is not legally permissible in stadiums within their jurisdiction. See also Order Granting Defendants Motion to Dismiss at 21-22, Armstrong v. Tygart, No. 1:12-cv-00606-SS (W.D. Tex. 2012), available at

http://online.wsj.com/public/resources/documents/armstrong.pdf. 85 See Jamison Hensley, Steelers James Harrison Just isnt Learning, ESPN.COM (Dec. 9,

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a result of the hit, McCoy was unable to play in the final three games of the 2011 season. McCoys salary in 2011 was $450,000, or $28,125 per game. This does not factor in any medical expenses incurred by the Browns or McCoy. McCoy was paid during this time, so providing him with compensation would affect a windfall. In addition to reasonable medical expenses relating to the injury, payment would be made to the Browns for the loss of McCoys services ($84,375).86 Offending players would be primarily responsible for satisfying awards, if they have the financial wherewithal to do so. In certain circumstances, such as Bountygate, teams could be held primarily responsible for awards, given that teams are in a position to control intentional, injury-producing events through coaching and education.87 Teams forced to pay awards would be provided with a private mechanism to seek contribution from its players if they so chose in appropriate circumstances. Again, this would allow teams and players to handle such matters internally, as most teams prefer to do.88 In addition, the money that is collected from fines and currently earmarked for charitable contributions would instead be set aside going forward as a fund for satisfying awards where there is no team involvement and where players are unable to satisfy awards (or where doing so would create a severe financial hardship). Sometimes these determinations are not as simple as figuring out a players salary for a definite number of games. For instance, what if a player is injured in the last year of his contract and unable to play or secure another contract? The Penalty Board will need to determine what the injured players expected future earnings would have been had the injury not occurred. Among other factors, the Penalty Board would need to assess

2011, 8:00 AM), http://espn.go.com/blog/afcnorth/post/_/id/37577/steelers-james-harrison-justisnt-learning. 86 Harrison was suspended one game without pay, which equates to $73,529. James Harrison Suspended 1 Game, ESPN.COM, (Dec. 14, 2011, 12:59 PM), http://espn.go.com/nfl/story/_/id/7348112/pittsburgh-steelers-james-harrison-banned-1-gamehit-cleveland-browns-colt-mccoy.
87 Hackbart I, 435 F. Supp. 352, 355 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. 1979) (The coaches make studied and deliberate efforts to build the emotional levels of their players to what some call a controlled rage.). A review of NFL Films productions on any given week will confirm that this is the case 40 years later. 88 See, e.g., Bill Belichick Sidesteps Questions About Tom Bradys Apparent Cliff-Diving Stint in Costa Rica, BOS. HERALD (July 27, 2012), http://www.bostonherald.com/blogs/sports/blitz/index.php/2012/07/27/bill-belichicksidesteps-questions-about-tom-bradys-apparent-cliff-diving-stint-in-costa-rica/ (reporting that when recently questioned about discipline of quarterback Tom Brady for cliff-diving in Costa Rica, a potential violation of team rules, New England Patriots coach Bill Belichick said, Any discipline we have is all handled internally and not publically).

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the players expected NFL longevity, typical contracts for the position and skill of the player, and market conditions. In the context of concussions, what if a player who was injured but able to return to action decides that he will retire rather than taking the risk of suffering another concussion?89 These, among a multitude of others, are difficult questions to answer. Again, however, these questions are best assessed by persons who have dealt in these types of transactions at length and are intimately involved with the game. Judge Matsch had it right: To decide which restraints should be made applicable is a task for which the courts are not well suited.90 Moreover, if these questions are brought before courts, they must resolve them instead of avoiding questions they would rather ignore.

CONCLUSION
The severity of the Bountygate penalties likely ensures that this type of system will never be formally employed by teams in the NFL again. However, intentionally targeting opponents existed before Bountygate and is likely to continue under the current system.91 If it costs a player $50,000 or $100,000 to knock Tom Brady out for the season and have an easier road to a Lombardi Trophy, would not the reward outweigh the penalty? Further, where is the line between fierce play and intentional injuries? When Brady suffered a season-ending injury during the first game of the 2008 season, it was not the product of a bounty or intentional targeting. Did former Kansas City Chiefs Bernard Pollard intend to injure Brady and end his season? Nothat hit was neither intentional nor illegal at the time. Did the Chiefs or other teams in the League publically celebrate the fact that a quarterback who had thrown 50 touchdowns the previous season and had come within seconds of engineering the first 19-0 season in League history would now be on the sidelines for the year? Of course not. But did
89 See, e.g., Jeff Zrebiec, Another Concussion Prompts Diehl to Retire Rather Than Pursue NFL Dreams, THE BALT. SUN (May 18, 2012), http://articles.baltimoresun.com/2012-0518/sports/bal-diehl-released-and-retires-because-of-concussions-20120518_1_nfl-dreamsravens-concussion (noting that in May 2012, undrafted Baltimore Ravens fullback Chad Diehl decided to retire rather than risk a third concussion in six months); Jeremy Schaap, Outside the Lines: Robert Smith: My Piece of the Pie, ESPN PAGE 2 (Aug. 25, 2002), http://espn.go.com/page2/tvlistings/show126transcript.html (discussing that some players, such as former Vikings running back Robert Smith who retired in his prime at 28 and in good health, feel that it is better to walk away early than limp away late.). 90 Hackbart I, 435 F. Supp. 352, 358 (D. Colo. 1977), revd, 601 F.2d 516 (10th Cir. 1979). 91 See, e.g., Mark Kram, 1989 Eagles Recall Original Bounty Bowl, PHILADELPHIA DAILY NEWS (Mar. 7, 2012), http://articles.philly.com/2012-03-07/sports/31132527_1_eagles-coachbuddy-ryan-bounty-bowl-luis-zendejas (noting that sports analysts have nicknamed a 1989 game between the Philadelphia Eagles and Dallas Cowboys the Bounty Bowl, where Cowboys kicker Luis Zendejas was allegedly targeted by Eagles coach Buddy Ryan).

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those same people privately breathe a sigh of relief when Matt Cassel was under center in 2008 for the Patriots? Undoubtedly. And therein lies the problem with courts evaluating on-field player conduct. Repeatedly hitting an opposing player with enough force to reduce their effectiveness is a recognized part of the game by players and fans of professional football, but jurors in a hypothetical civil action may not understand this violent, yet League-authorized, aspect of the game. In Super Bowl XLII, a major factor in the Giants victory over the thenundefeated Patriots was that the Giants repeatedly hounded Brady (who was already suffering an ankle injury) all day, sacking him five times and knocking him down eight.92 This was not the product of a bounty, but rather recognition that the more times a player (particularly an already injured player) is legally hit, the less effective the player will be. By the same token, should there have been such a public outrage over Bountygate? Though a pay-for-performance system circumvents the salary cap (albeit minimally), isnt the game of football largely premised on rewarding players for legally hitting opposing players so hard that they are rendered ineffective? Determining these questions is for football expertsthose that know and have been involved in the game. The NFL should do everything in its power to create a system to resolve these types of disputes, lest they be left to lay juries who will set precedents for what is acceptable on-field conduct. Based on recent trends, including the concussion litigation and Bertuzzi lawsuit, these types of lawsuits are coming to the NFL. But like most everything in the NFL, these disputes are better handled in the family: protecting and compensating injured players, deterring intentional conduct, and at the same time protecting the NFL shield and its reputation. Addressing intentionally inflicted injuries through establishment of an Injury Review Board will accomplish each of these goals. Admittedly, this described proposal details only the framework and broad strokes of a future system. Such a proposal undoubtedly will be subject to debate and negotiation among the players, teams, and League (and subject to a new or amended CBA). But this dialogue should begin nowwell before judges and juries are asked again to evaluate player conduct and determine what is or is not acceptable on the gridiron. Although labor negotiations between the players union and League are notoriously contentious, both parties ultimately should have a significant and aligned interest in the safety and financial security of NFL players suffering intentionally inflicted injuries.

92 See, e.g., Peter King, Keeping Giants Pass-Rush from Brady is Pats Tough Task; Mail, SPORTS ILLUSTRATED (Jan. 24, 2012),

http://sportsillustrated.cnn.com/2012/writers/peter_king/01/24/mail/index.html.