By Kendra K. McGuire[1], Charles F. Gfeller[2], and Olivia C. Tawa[3]
The Incident
Football is a popular collision sport, with almost every play involving players pushing, clashing, and running into each other. It is also a sport where emotions run hot, particularly when rival teams square off.
Despite football’s inherent violence, well-established rules of play specifically delineate both permitted and prohibited contact. A breach of these universal rules can impose civil liability, and in some cases, criminal liability, on a player.
The charges filed in November of 2022 by the Washtenaw County Prosecutor’s Office in Michigan provide a perfect illustration of a situation in which civil or criminal liability may be imposed on a contact sport participant due to unnecessarily violent behavior directed towards another player.
On October 29, 2022, the University of Michigan Wolverines hosted their in-state rivals, the Michigan State Spartans, for an evening game. For the first time in three years, the Wolverines defeated the Spartans, 29-7. Following the game, several Wolverines mockingly waved the Spartans off the field as the Spartans exited into their locker room through a tunnel.
Two Wolverines, graduate defensive back Gemon Green (“Green”) and sophomore defensive back Ja’Den McBurrows (“McBurrows”), were walking to their locker room alongside the Spartans in the tunnel when they were suddenly physically assaulted. In a video that surfaced online shortly following the incident, Spartans can be seen pushing, punching, and kicking McBurrows. In another video, a Spartan appears to use his helmet to swing at and strike Green. Both McBurrows and Green sustained injuries as a result of the assault.
One month later, the Washtenaw County Prosecutor’s Office in Michigan filed criminal assault charges against a total of seven Michigan State players for their actions in the tunnel on October 29, 2022.
Five players – redshirt sophomore linebacker Itayvion “Tank” Brown, junior safety Angelo Grose, redshirt junior cornerback Justin White, senior defensive end Brandon Wright, and freshman defensive end Zion Yong – were each charged with one misdemeanor count of aggravated assault. In Michigan, a conviction for a misdemeanor assault carries a prison term of up to one year. Additionally, senior linebacker/defensive end Jacoby Windmon was charged with one count of assault and battery, which carries a maximum sentence of 93 days in prison in Michigan.
The most serious charge, felonious assault, was brought against redshirt sophomore cornerback Khary Crump (“Crump”), who faces up to four years in prison if convicted. Crump was the player who appeared to swing his helmet at Green, which would likely account for his more serious charge. Michigan state law defines a felonious assault as an attack “using knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm.”[4] To support the more serious of felonious assault, prosecutors likely argued that Crump brandished his helmet as a dangerous weapon during the attack.
All the charged players were suspended indefinitely while Michigan State, the Big Ten College Football Conference, and local police investigations took place. Another player, freshman cornerback Malcom Jones, was suspended from the team, but he was not included as a charged individual.
Legal Liability for Actions That Go Beyond the Bounds of the Sport
The University of Michigan-Michigan State incident offers valuable insight into the legal liability of the charged players for their actions taken during – or immediately following the conclusion of – a sporting event.
In addition to following the rules of play, participants generally have a duty of care to avoid causing reasonably foreseeable harm to other players.
However, in the context of sports, some jurisdictions apply a “contact sports exception” to the ordinary duty of care. This exception modifies the standard of care and acts as a bar to recovery for injuries caused by negligent conduct sustained in a contact sport, unless “caused by willful and wanton or intentional misconduct.”[5] In other words, the “contact sports exception” makes it more difficult to sustain an action against a defendant because the plaintiff must prove that the defendant acted with recklessness or intent to cause bodily injury, not merely a failure to avoid causing reasonable harm.
In football, the rationale behind the “contact sports exception” is that football requires players to constantly come into physical contact with each other, often with great force. For example, linemen aggressively charge the opposing line shoulder to shoulder; a ball carrier risks being violently thrown to the ground, while a tackler risks jumping toward a quickly moving body.[6]
Common Defenses to Legal Liability
The “assumption of the risk defense” is frequently applied to claims arising out of participation in sporting events. Under this defense, a plaintiff’s recovery is barred when the plaintiff takes action that assumes the risk of the injury. Note, however, that the “assumption of risk defense” is not recognized in all jurisdictions, and in some states, the doctrine of assumption of risk has been subsumed within the doctrine of comparative negligence.
For example, the Supreme Court of California applied the “assumption of risk defense” when it held that a defendant, who ran into and injured a co-participant when jumping for a ball during a touch-football game, did not breach a legal duty of care owed to the injured co-participant. Even though the defendant’s play was rough, it was not so rough or reckless that it totally fell outside of the range of the ordinary activities involved in the sport, because jumping to catch a ball is a reasonably regular and foreseeable aspect of football. In other words, the injured co-participant assumed the risk of being injured as the result of coming into physical contact with a player who was conforming to the regulations of the sport. As a result, the injured co-participant’s recovery was barred under the primary assumption of risk doctrine.[7]
Another defense that can be used to combat civil or criminal charges is the “consent defense.” Generally, when an individual participates in a sporting event, he or she consents to reasonable contact in accordance with the understood rules and usage of the sport.[8] The “consent defense” fails, however, if the participant engages in such violent contact that the co-participant would not have reasonably consented to it.
In one case involving the “consent defense,” the defendant was criminally charged with third-degree assault after he threw a punch while he was tackling the complainant, a ball carrier on the opposing team. The court opined that the complainant could not have legally consented to an “overly violent” activity. The defendant’s actions were “overly violent” because the defendant intended to punch the complainant. As a result, the defendant’s charge was upheld.[9]
In another case, decided by the Supreme Court of Virginia, a minor middle school football player filed a civil assault and battery charge against his football coach after the coach lifted the player up and slammed him on the ground during a tackling demonstration. The court held that by participating, the minor player consented to physical contact with players of like age and experience. However, the minor player did not expect or consent to his participation in an aggressive tackle by an adult football coach. The court reasoned that, while receiving an injury when tackling or being tackled may be a part of football, the coach’s action – given the disparity in size and experience – could lead a reasonable person to conclude that the coach acted imprudently and with utter disregard for the involved player’s safety. For these reasons, the minor player sufficiently stated a cause of action for assault and battery against his coach.[10]
In a factually similar case decided by the Western District of the Missouri Court of Appeals, a high school football player filed civil assault and battery charges against his football coaches after sustaining injuries when he was tackled during a practice by one of the coaches, who was wearing full protective padding. The court found that the player voluntarily consented to the risks reasonably inherent in football, which included physical contact and collisions with other players, but the player’s physical contact with his coach was not a reasonably foreseeable consequence of playing high school football. As such, the coaches’ charges were upheld.[11]
Lessons Learned
Although the above-referenced cases involve situations where football players filed civil charges against other participants, the University of Michigan-Michigan State incident offers valuable insight into the potential criminal liability of an athlete’s potentially criminal actions taken inside or outside the lines.
Taken together, the Michigan – Michigan State incident and the above-referenced cases suggest that a contact sports participant, or coach, may be held liable for their actions both on and off the field, if those actions go beyond what the other participants bargained for. Controlled violence on the gridiron is one thing – players know what they are getting themselves into; however, conduct that is effectively criminal (i.e., assault and battery) or which goes beyond the bounds of what players signed up for (i.e., coaches tackling players) could lead to criminal and/or civil exposure.
For those reasons, contact sports coaches should educate their players on the civil and criminal repercussions of their on-field and off-field actions, and should also make certain that their players are following the prescribed rules of the game and not engaging in potentially reckless or criminal conduct.
Facility operators should take care to implement security procedures around the facility, including the tunnels and locker rooms. In instances of heated rivalries, where emotions can be anticipated to potentially boil over, keeping the respective teams at arms-length is advisable. Moreover, the bigger and more physically mature the players, the more security a facility operator should have in place to protect against a Michigan – Michigan State tunnel-like scenario.
As an example, at their next home game following the incident, the University of Michigan increased the security presence in and around the tunnel. It also prevented University of Michigan players from entering the tunnel until each player from the opposing team left the field at halftime and after the game to ensure the protection of all participants.
In sum, contact sports – like football – have inherent risks to participants. Sports have rules to govern players’ conduct and penalties that are assessed as part of the game when rules are broken. Despite this, players and coaches alike must acknowledge the legal precedent that they are not immune from civil or criminal liability when their actions go beyond what is reasonably foreseeable to reach a level that surpasses what is acceptable.
[1] Kendra K. McGuire is an Associate Attorney with Gfeller Laurie, LLP. She can be reached at kmcguire@gllawgroup.com.
[2] Charles F. Gfeller is a Partner at Gfeller Laurie, LLP. He can be reached at cgfeller@gllawgroup.com.
[3] Olivia C. Tawa is an Associate Attorney with Gfeller Laurie, LLP. She can be reached at otawa@gllawgroup.com.
[4] Mich. Comp. Laws § 750.82 (1994).
[5] Pfister v. Shusta, 657 N.E.2d 1013, 1014 (Ill. 1995).
[6] Karas v. Strevell, 884 N.E.2d 122, 132 (Ill. 2008).
[7] Knight v. Jewett, 834 P.2d 696, 712 (Cal. 1992).
[8] Avila v. Citrus Community College Dist., 131 P.3d 383, 395 (Cal. 2006).
[9] People v. Freer, 86 Misc. 2d 280, 284 (Dist. Ct. N.Y. 1976).
[10] Koffman v. Garnett, 574 S.E.2d 258, 261 (Va. 2003).
[11] Elias v. Davis, 535 S.W.3d 737, 746 (Mo. App. 2017).
