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NFL Bounties and the Law

With all the news reports about players and coaches on the New Orleans Saints having a system of side payments for knocking opposing players out of the game, I was interested to get the take in Give the Ref a Gavel written by Eldon L. Ham, a lawyer and adjunct professor at the Chicago-Kent School of Law.

Mr. Ham refers to the Saints bounty program as a "ruthless criminal conspiracy" which the NFL should punish via fines and suspensions. In addition, Mr. Ham calls upon legislatures to take action.

Rather than wait for our courts to gradually wake up, state legislatures should accelerate the process by adopting laws defining and criminalizing something we can call “flagrant sports battery.” This could protect not just N.F.L. players, but athletes in high school and college. These laws would not apply to customary hard hits, personal fouls or the normally accepted aggressive play that is part of the game. But they would proscribe aberrant conduct like hit lists and bounties, and penalize other malicious actions.

It is easy to agree, I suspect, that keeping hit lists and paying bounties for putting players out of the game through actions in violation of the rules of the game is outside the bounds of sportsmanship and should be condemned. I suspect also that most people knowledgeable about a professional sporting contest, and surely the participants in that contest, know who the key players on the opposing team are and hardly need a list to be kept to remind them. A law addressing such issues seems like a nice idea, but what would it actually accomplish?

But Mr. Ham also calls for the law to "penalize other malicious actions". Wow. I hope if any such law ever gets discussed it is far more specific about what constitutes a malicious action under the law than Mr. Ham has been in this op-ed piece. Fans of the NFL are likely to agree that rules regarding what are and what are not legal hits within the rules of the game seem to be applied in ways that are largely random, though possibly with some deference to protecting marquee players, especially quarterbacks. I think these "other malicious actions" will be as hard to define as pornography, we can't quite say what they are, but we know them when we see them.

The actions described in Mr. Ham's article are all troubling. Courts should perhaps be more willing to tackle some of these cases, and leagues, professional and recreational alike, should be more active in policing their members to keep these things from happening. But one wonders if these sorts of occurrences are so common place as to warrant passage of laws that would surely be costly to enforce and difficult to prosecute.