Whether Public Health Will Redefine Consent to Assault and the Intentional Foul in Gladiator Sports

Presenter Information

Jennifer Brobst, Southern Illinois University Carbondale

Location

Cleveland-Marshall College of Law

Start Date

20-3-2015 3:15 PM

End Date

20-3-2015 3:45 PM

Description

Gladiator sports, such as boxing, martial arts, and American football, are permitted to exist in part due to the consent to assault defenses in criminal and civil law. However, these defenses have always been tempered by avoidance of permanent injury and death, an unreasonable level of harm to which no one may legally consent. The rules of the game reflect this, where what constitutes a foul and corresponding penalty are motivated by considerations of player safety. Unfortunately, the strategic intentional foul consistently undermines this effort. With an array of new public health measures focused on player safety, such as those aimed at preventing traumatic brain injury (TBI), the previously generous application of the consent defense to assault in sports should come under greater scrutiny in the courts.

Historically, when players seriously injure each other, the courts consider both the explicit and implicit rules of the game to define what behavior is subject to the consent defenses. See State v. Floyd, 466 N.W.2d 919, 922 (Iowa Ct. App. 1990) (finding fighting conduct during a basketball game to fall outside the parameters of the consent defense to assault); State v. Brown, 143 N.J. Super. 571, 576, 364 A.2d 27, 30 (N.J. Super. 1976) (applying the consent defense to assault to protect activity that is “reasonably within the rules or purview of the sports activity”). Some civil courts have found a very minimal or nonexistent duty of care and a generous assumption of risk in all contact sports: “The risk of physical contact and the possibility of resulting injury is inherent in the game of football, no matter who is playing the game or how it is played.” Knight v. Jewett, 3 Cal. 4^th 296, 323 (1992); but see Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) (declining to uphold the no duty of care rule regarding sports-related injuries). The courts also traditionally focused on risks to the public due to breaches of the peace, rather than risks to the players, permitting public gladiator sports only in controlled settings. See People v. Jackson, 58 Cal. 4^th 724 (2014) (“Voluntary mutual combat outside the rules of sport is a breach of the peace”); Baxter v. State, 354 Mont. 234, 242 (2009) (discussing the consent defense in sports when permitting quiet, controlled physician assisted suicide, as an exception to the limitation on the consent defense for acts causing death).

An increase in sports injury litigation could emerge subsequent to enhanced public health measures now aimed at protecting players against TBI. This could, in order to avoid liability, create a shift in how gladiator sports are monitored, coached and played. For some sports, such as boxing, if one could not consent to a serious risk of TBI, then the entire sport could be banned. In contrast, if courts continue to permit implied consent to both explicit and implicit sports conduct regardless of health risks, then the new injury prevention efforts will be undermined. The legal decisionmaking bodies that created the public health sports injury prevention measures should be willing to tailor the current consent defenses in a reasonable, medically-informed way. Specifically, the consent defenses to assault should place greater value on the express rules of high risk gladiator sports, so that the intentional foul is curtailed. If players must succeed within the bounds of the rules, they can be more assured of giving informed consent to reasonable contact. Thus, the medically informed public health approach to contact sports would be consistently upheld from prevention to litigation enforcement, protecting athletes, fair play, and the long tradition of gladiator sports.

Presentation Outline:

1. Introduction
2. The Relationship Between Risk of Injury and Rules of the Game
   1. Identifying High Risk “Gladiator Sports”
   2. Consenting to Risk: Factors related to Age, Rules, and Policy
   3. Official and Unofficial Responses to the Intentional Foul
3. Development of the Criminal and Civil Consent Defense to Assault in Contact Sports
   1. Recognition of a Broad Standard of Assumption of Risk in Contact Sports
   2. Mental Health Recognition of the Benefits of Contact Sports
4. The Influence of Medical Research and Public Health Revealing Additional Risk in Gladiator Sports
5. Whether Public Health Will Redefine Consent to Assault
   1. How Medical Standards Impact Legal Standards in Sports Law
   2. Changing Rules or Changing Refs?
   3. Restricting the Intentional Foul through Policy and Law Reform
6. Conclusion

Speaker Information

JENNIFER A. BROBST is an Assistant Professor and Director of the Center for Health Law and Policy at Southern Illinois University School of Law. She recently transitioned from a position as Legal Director of the Center for Child and Family Health, a medical-legal faculty consortium from Duke University, North Carolina Central University, and the University of North Carolina at Chapel Hill. Formerly, she practiced law as an Assistant Prosecuting Attorney in South Bend, Indiana, and as Supervising Attorney of the first domestic violence clinical program at North Carolina Central University School of Law. Since 2004, her teaching and scholarship have focused on matters related to public health law, criminal law, mental health law, evidence, scientific evidence, and crime victim rights. She is licensed to practice in California, Indiana, North Carolina, and before the United States Supreme Court. Prof. Brobst has received degrees from the University of Cape Town, South Africa (B.A. in archaeology and social anthropology), University of San Diego (J.D.), and Victoria University at Wellington in New Zealand (LL.M. by thesis in international comparative law on the reasonable discipline defense).