By Jordan Kobritz, J.D., C.P.A.
Introduction
The thousands of plaintiffs – former players and their family members – suing the NFL in the so-called concussion lawsuits have one thing in common: They all seek monetary compensation for the injuries, disabilities, and medical expenses allegedly incurred as a result of playing football.
If the plaintiffs are successful, and a settlement is a likely resolution, what incentive do the defendants have to change both the nature of the game and how they deal with injuries suffered on the field of play? Even if the damages are substantial, we’re only talking about money. Furthermore, whether the money is paid by the NFL or an insurance company, which may result in higher premiums paid by NFL teams, it’s merely a cost of doing business. The NFL grossed an estimated $9.5 billion in revenue last year, a sum that is predicted to reach $20 billion by the end of this decade. The league can afford to absorb a settlement, even if it runs into the billions- of-dollars.
Is there a better deterrent to the wave of injuries and concussions occurring in the NFL and other sports? Maybe.
The Case for Criminal Charges
In the Master Complaint filed in the NFL concussion cases, the Plaintiffs make a number of allegations against the league, including: fraudulently concealing information; negligently misrepresenting information; failing to disclose information of which it had knowledge; having significant influence on the original concussion study committee; failing to take appropriate preventative measures; and belatedly acknowledging that there was a concussion crisis.
Can criminal charges be brought if the allegations in the complaint against the NFL are proven? Here are a few possibilities based on the allegations in the complaint: perjury; obstruction; conspiracy; wanton endangerment; and negligent homicide.
Who might the defendants be? Depending on the role they took in encouraging, promoting, ignoring, fostering and participating in violence on the field of play, potential defendants could include NFL Commissioner Roger Goodell, team owners, front office personnel including general managers, members of the coaching staff, and team medical personnel – doctors and athletic trainers — along with their predecessors. Who knew what, when they knew it, and what they did — or did not do — with that information are key questions a prosecutor needs to answer prior to bringing any charges.
Other potential defendants could include the NFLPA, its executive director, DeMaurice Smith, and other union employees. Based on recent disclosures detailing the NFL Pension and Disability Board’s (PDB) concussion related disability awards to former players, including former Steelers’ center Mike Webster, it appears that the NFLPA has long been aware of the effect concussions have on its members. Three of the seven members of the Board are appointed by the NFLPA, yet the union failed to disclose information obtained in the PDB hearings to the players.
The Case Against Criminal Charges
Historically, the criminal justice system has been reluctant to become involved in addressing violence and injuries in sports for a variety of reasons. First, we’re talking about playing sports, “games.” We don’t equate a linebacker’s violent hit on a receiver cutting across the middle with a street mugging, although the physical consequences can be just as severe, even life changing or permanent.
Second, you have the issue of “implied consent.” Although parents, family and friends may put pressure on young people to play sports, no one “forces” anyone to play football in the NFL. Participants choose to play professional sports, and generally accept the risks of injury inherent in the sport.
Third, there is an expectation that teams and leagues, and even the players themselves, will self-regulate the sport and their actions. Every sport has rules that are designed to regulate fair play along with a penalty system to discipline those who exceed the rules. However, those rules by and large regulate participants – the players – rather than non-participants such as coaches and management personnel.
As we saw in BountyGate, off-field personnel who have a hand in violence aren’t immune from disciplinary action. In addition to penalizing a number of New Orleans Saints defensive players for allegedly instituting a bonus system, or “bounties,” for a teammate’s in-game performance that was designed to injure an opponent, the NFL also disciplined coaches, administrative personnel and the team. Defensive coordinator Gregg Williams was suspended indefinitely and will not be allowed to apply for reinstatement until the end of the 2012 season; head coach Sean Peyton was suspended for the entire 2012 season; General Manager Mickey Loomis was suspended for the first eight games and linebackers’ coach Joe Vitt was suspended for the first six games of the 2012 season. In addition, the Saints were fined $500,000 and also stripped of their 2nd round draft pick next year.
Because the NFL determined that these individuals violated the rules of the sport, it isn’t beyond the realm of possibility that they could also be charged criminally for the consequences of their actions.
The Potential Hurdles of Criminal Prosecution
Where to begin? We can start with the difficulty in proving mens rea, or criminal intent. In sports, an act of violence is often reflexive and occurs in the heat of the game.These fast-paced actions make it hard to distinguish what is outside the realm of the sport.
A second hurdle is the issue of consent or assumption of risk in sport. When players take the field of play, they imply that they are assuming the risk of possible injury.
Third, you can make a strong argument that the purpose of the criminal justice system does not align with the concept of prosecuting individuals who are involved in sports. That argument says when a violent act takes place on the field of play, it does not harm society; therefore, there is no justification for criminal prosecution. A contrary argument is that the more society legitimizes excessive violence in sports, the greater the likelihood that violence will spill over into social settings. That was one of the arguments used to justify the prosecution of Barry Bonds and Roger Clemens, with the illegal use of drugs substituted for violence.
Another criticism of the use of the criminal justice system in this context is that the system is ill equipped to handle such matters compared to teams and leagues. The governing body of each sport understands their sport better than any court, lawyer or jury, so the argument goes. Therefore, they are better equipped to govern the sport and administer punishment than the criminal justice system is.
While that may be the case, governing bodies have a strong interest in promoting their sport, which sometimes involves preserving and promoting violence as a marketing tool. That’s especially true in the NHL and perhaps to an equal extent in the NFL. However, when teams and leagues police themselves we have a classic case of a conflict of interest, something which may or may not be true of the criminal justice system. We can’t discount the potential political ramifications of criminal prosecutions for violence in sports.
Additional hurdles inherent in criminal prosecutions vs. civil actions include the more difficult standard of proof – beyond a reasonable doubt in a criminal case vs. a preponderance of the evidence in civil cases – and the fact that criminal cases have double the number of jurors as is usually required in a civil case. Of course, a criminal conviction also requires a unanimous verdict vs. a majority vote in a civil case.
The time and expense to the judicial system will also be factors in criminal prosecutions, not to mention which system — federal or state — is most appropriate.
Proving cause and effect – which act, or acts, of violence caused the injury – will be a major hurdle in a criminal case, not unlike the challenge faced by plaintiffs in the NFL concussion suits. The NFL is sure to present evidence that concussions have a cumulative effect, perhaps going back to grade school. The statute of limitations will also be raised as a defense.
Summation
My goal here isn’t to reach conclusions, but to raise the possibility of using criminal law as an approach that might be more effective in changing the culture in the NFL towards concussions and violence in general than the civil litigation currently underway. Every NFL owner values money, but even if the concussion lawsuits result in a huge payout, there is always more money to be made. Indict an owner — threaten him with the loss of freedom and a criminal record along with its attendant consequences — and one thing is certain: You are guaranteed to get his attention.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is currently a Professor and Chair of the Sport Management Department at SUNY Cortland. This article is adapted from a presentation Jordan made during a conference at the Thomas Jefferson School of Law in San Diego titled: Gladiators of the 21st Century: Violence and Injuries in Athletics. Jordan wishes to acknowledge the contribution of his research assistant, James Harwood, LLM, MSc, SUNY Cortland.
