“Bounties” Are A “big deal” –NFL Carriers Are Jacking Premiums as Liability Tectonic Plates Shifting

Below is WEEI Sports Radio host Gerry Callahan’s tweet about Shawn Merriman’s comment in the SI article on the New Orleans “bounty” issue.

Good question from Shawn Merriman: ‘Why is this a big deal? Bounties have been going on forever.’

Gerry should know better. Just because the ground — when he walks down Washington St. to the EEI studio –never appears to move does not mean it is not moving. Tectonic plates move. Continents, ocean floors, are moving and clashing. That’s what we call the big picture. And Gerry should be aware of the big Tectonic plates moving beneath the sports world.

Here’s why the New Orleans “bounty” is a “big deal”:

1. Civil liability. As so expertly cited by Gabe Feldman of Tulane, in 1973, Booby Clark of the Bengals gave a cold hard elbow to the back of the neck of Dale Hackbart, a Bronco’s defensive back, as Hackbart knelt on the field just after a play ended. No penalty was called! — because refs didn’t see it. Hackbart never brought it up for weeks, ’til he was told by a doctor that he had fractured vertebrae. And the dirty hit was on video. And, after appeal, Hackbart broke brand-new legal ground, because his lawsuit was allowed to go forward, because of a showing that Booby Clark had acted in “reckless disregard for Hackbart’s safety.” Here’s a link to the Hackbart case, provided by Gabe Feldman of Tulane Law.

The court found unpersuasive the “what’s the big deal, football’s always been a violent game” argument.

Why’s this important?  Here’s why.  Roger Goodell has already moved with alacrity and strength on the concussion-safety issue; he’ll do the same on the bounties. Because both issue are ones on which every NFL team has had significant discussions with their doctors and insurance carriers and lawyers.

I’ll safetly guess that the Saints have had discussions with their insurance carriers already, in which the carrier may have said they need to “re-adjust” N.O. insurance premiums — either prospectively and/or even retroactively, based upon these “bounty” reports.  And probably these will be substantial adjustments.

And in light of the Hackbart case, every other NFL is very concerned. Agitated. And this will approach apoplexy, because there are other legal issues.

2. If, as Merriman suggests, Callahan agrees, and so many have said, this “goes on everywhere, and has been for a long time, then the liability issue becomes even broader. By simple example, this “long-and-well-known-practice” provides a good foundation (if it existed back in the 70’s, when Hackbart sued) which could have allowed Hackbart to sue not only Booby, but also the Cinncinatti Bengals.  Nervous now, very nervous, are all the NFL owners.

3. But there are some really good public policy reasons for the kind of legal liability envisioned in the Hackbart case (and some other kinds of liability, too.) Like the tsunami of money which has flooded NFL owners (and universities) over the last 30 years. Combined with the average tenure/career of an average NFL player — what is it, 3 to 5 years?  Are there not some very good public policy reasons for allowing a man whose severe injury is proven to have resulted from intentional conduct by another player —  and  intentional overt policy by the other team, to obtain some money compensation for precious loss of income during the middle of his “golden”, often very remunerative, but also very (relatively) short NFL career?

4.  I will drift toward some speculation. Just a thought. Merriman’s comment sounds eerily like some of the slightly chippy, overly dismissive comments which apparently were made by Dave Duerson in the years before his demise.  But that speculation points out another area of liability: for “gradual” injuries over time, probably within the separate workers’ comp realm.

Tectonic plates shifted on Big Tobacco: mammoth, class-action and other legal liability brought a sea change to our use, promotion and distribution of tobacco products here in the  U.S.  Similar big-picture Tectonic plate-moving  huge liability potential changed the building products industry, by removing asbestos use and driving some Fortune 100 companies to bankruptcy. The NFL owners can hear those plates grinding, loud now.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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