Assumption of Risk and Football

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. DCLawyer says:

    I would think that this is something closely linked with our perception of (a) how valuable the activity is (given the $$$ involved, pretty significant) and (b) how easy it is to make significant changes that won’t impair the activity’s value. The more significant (in terms of reduction of harm) and less likely to impair a change is, the more likely we are to see a court use the assumption of risk doctrine.

    Let me give you a long standing one. Baseball fans assume the risk of being hit by a ball or flying bat. This has been the rule for 100 years or so. But we also know that baseball has remediated that risk where reasonable (e.g. the net behind home plate). Failing to put up a backstop would, I think, be seen vitiating the assumption of risk as its an easy fix with zero impact on how the game is played.

    Now, let’s consider maple bats. Maple bats strike me as a fairly new hazard. They’ve only come into widespread use in the past decade or so – these aren’t the tools of Babe Ruth, Hank Greenberg or even Mickey Mantle. However, they are considered much more likely to break, and in a manner that causes splintering, than traditional bats.

    If I were a judge deciding a lawsuit brought by a fan injured by a maple bat, I think I could be persuaded to waive the assumption of risk doctrine, because I think it’s premised on the notion that the league has done what it reasonable can to mitigate, which is NOT the case with maple bats.

    Yet, MLB continues to look the other way, mainly because the extra offense is perceived as a crowd pleaser.

  2. Gerard,

    Two points, both of which I develop in more detail here. First, it seems relevant to any assessment of AOR the extensive conflicts-of-interest that attend health care arrangements for professional football players (which is where most of the activity is right now regarding mild traumatic brain injury [“mTBI”]). Football players may or may not assume the risk, but insofar as tort law is unavoidably a policy inquiry — ‘what kinds of injuries do we want to permit compensation for’ — it seems relevant to me to the question of whether mTBI is compensable that the conflicts-of-interest are rampant and very likely have caused or exacerbated harm to football players.

    Second point also goes to the policy analysis, which is that the resources made available in this country for long-term care are minimal. Of course, this is exactly the kind of care which players suffering from neuropathology caused by repeated mTBI are likely to need, which means a decision on whether to compensate players has significant social, not to mention normative, implications.

  3. Fraud Guy says:

    After all, professional boxing used to be bare-knuckles. Then it required gloves. It used to be fifteen rounds. Then that got reduced to twelve. I’m sure that folks who liked boxing the way it was (or the flying wedge, for that matter) thought that more safety rules would ruin the sport.

    IIRC, one of the researchers arguing about the concussions also explained that the addition of gloves made boxers more likely to receive concussions and other brain injuries because, while surface injuries are more likely, a boxer is more likely to swing at hard surfaces (head) with the protection of the gloves than without.