LAW

Fight or Flight? Liability Issues for Intervening

By Rob Feightner

A fight breaks out in a game you are officiating. Several players square off. One player is wrestled to the ground and is being punched mercilessly by his opponent. What do you do?

The primary duty is to look out for player safety and maintain control of the game. But several legal and practical principles also come into play. While the law is not fully settled on the duty to break up fights or the standard for liability for the failure to step in and protect a player, legal scholars believe officials have a duty to protect players from fighting injuries and should not be liable for

doing so unless excessive force is used in breaking up fighting players, according to Michael Mayer, writing “Stepping In to Step Out of Liability” in the DePaul Journal of Sports Law.

Two important legal principles come into play in a fight (and football is the example here, but there are principles that apply to other sports): 1. The duty to protect players from injuries not common to the game of football. Football is a violent sport, and a player assumes these risks. But he does not assume the risk of injuries from a fight. 2. The risk of liability if an official uses too much force. How far can you go in using force to separate fighting players?

Player protection is the first concern. The player on the ground needs protection. An official would have broad latitude in pulling off the punching player.

The officials must also defuse the rest of the fight. So breaking up nonfighting but shoving players would be conduct that is necessary and protected.

Under the prevailing view, sports officials are only liable for an injury to a player when the official’s actions are reckless, malicious or wanton misconduct. For example, consider a situation where a running back is held up but still churning his feet, still trying to get the first-down yardage. You are a little late on the whistle. The vulnerable player takes a hard hit that takes him out of the game. But you made a reasonable call. It may have been wrong (negligent), but you were not reckless nor was there malicious intent.

Now consider what would happen if you turned away from the field during the play and walked to the bench to get a water bottle. Same play, same result. You did not watch the play, so you did not see the runner in a vulnerable position. You did not see the vicious hit. Your conduct is reckless and wanton misconduct.

Football is a violent sport where tempers can flare. But if a fight breaks out, officials properly performing their duty are protected from liability. They can physically engage players to protect another player and to separate scuffling players. They can use the force necessary to do so.

The job of the official is to keep the game under control and protect players from untoward harm. Using common sense and uniform application of the rules, the sport can keep plaintiff’s lawyers out of the game. Rob Feightner is a licensed Indiana football official and attorney from Fort Wayne, Ind. He is also the developer of GameNite, a mobile app for football officials. This column is for information purposes and is not legal advice. 

One player is wrestled to the ground and is being punched mercilessly by his opponent. What do you do?

The Game of Football and Assumption of Risk

Football puts many legal principles into play. An obvious one is assumption of risk. There are 10 or 12 batteries on every play. Tackle a guy at the bus stop and you will spend time in jail. But football players accept these risks. As do officials.

The main column notes the legal standard is not a certainty. Richard Hunter, professor of legal studies at Seton Hall, argues ordinary negligence is the standard by which officials should be judged to protect players. This position is shared by John Cadkin, author of “Sports Official Liability: Can I Sue if the Ref Missed a Call?” Denver Sturm College of Law, 2007.

The standard of liability an official might face, reckless and wanton conduct, or ordinary negligence is critical to the outcome of the case. There is a legal procedure to dismiss meritless cases called a summary judgment motion. Most cases are dismissed using summary judgment when the legal standard is reckless or wanton. Few case are dismissed if the legal standard is ordinary negligence.

If state courts adopt the ordinary negligence standard, more sports officials could be sued, and more liability created.

Safety Checks

Reasonableness and foreseeability are key when it comes to officials’ liability for safety-related issues. In some areas, reasonable behavior is established by rule. For example, a number of sports have mandatory safety equipment, and mandatory procedures for ensuring that safety equipment is being worn at the start of the contest. An official’s failure to follow procedures is going to be construed as negligent behavior. If the rules require something, enforce it. If the sport has a particular procedure for checking, the official must follow the procedure. An official who passes on safety rules could pay a price in court.

SOURCE: 1/11 LAW COLUMN

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