Op-Ed: File Criminal Charges For Hard Hits

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Read Eldon Ham's Piece For The New York Times, "Give The Ref A Gavel"

The NFL found some two dozen players for the New Orleans Saints took part in a pay-for-hits program that paid bounties for knocking specific players out of games. Those involved likely face fines or suspensions. But lawyer Eldon Ham argues that doesn't go far enough, and proposes criminal charges.

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JOHN DONVAN, HOST:

Now, it's The Opinion Page. Stay tough, hit hard, don't back down, hit harder, we can immediately - easily imagine that conversation going to the head of an NFL defensive player when he's in the middle of a game and when the stakes are winning the game and the way to win the game is to be aggressive. But there is aggressive and - well, can there be too aggressive, criminally aggressive, as in felony-level aggressive? Well, Eldon Ham thinks so, and he thinks that we have seen it already.

In an op-ed for The New York Times, he's arguing for prosecutions for those who were involved in the recently revealed case where the New Orleans Saints were actually offering cash bonuses to players in return for deliberately injuring key players on the opposing team. It's been called a bounty program. It could also translate as giving money to guys for hurting other guys. But wait. Isn't violence also just built into some games, and isn't that why some sports are called contact sports? And isn't that why we have fouls for - when a player goes to far?

If you start calling in the cops on a solid hit in the backfield, where does it end? We want to hear from athletes, and we want to hear from coaches. When is it not a foul but a crime? Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website, go to npr.org and click on TALK OF THE NATION. Eldon Ham joins us now from member station WBEZ in Chicago. He is a lawyer and also an adjunct professor at Chicago-Kent College of Law. His op-ed is called "Give The Ref A Gavel," and it ran last week in The New York Times. Nice to have you with us, Eldon.

ELDON HAM: Hey. It's my pleasure, John.

DONVAN: So here's the question. As I just put it before, the - we do call fouls. We have fouls that define behavior that is considered penalizable, let's - let me put it that way. That there's a certain kind of behavior that's not accepted, and they call a foul on it. And you're talking about taking it a great deal further to take a - what you see as a malicious action on the field and make it into a criminal prosecution. And, obviously, the question here is: Who decides what's malicious, and what's just a hard hit?

HAM: Sure. Well, ultimately, it would be a local prosecutor in all likelihood. I'm not in favor of replaying all the football games and re-establishing which hits were good, which were bad. But if you have a situation where there is a serious injury and it's something that the player didn't really assume the risk of, you know, you play a baseball game or a football game, you assume the risk of a good deal of violence and injury, the kind of thing that just goes with the game. But there are also others that you don't really assume the risk of.

If you want to analogize it to everyday life, people get speeding tickets. It's sort of like a flag in a football game, I suppose. But then there's other issues. There's reckless homicide, negligent driving, all of those things. And if it creates mayhem on the field, my point is it shouldn't get a free pass. If there's mayhem on the football field or a baseball field, basketball court, it can be prosecuted. It's just the judges over the years have shied away from that because up until now it's impossible really to tell who was at fault.

It's a blur of action on the field, and it's a conflicting series of testimony that would go with it. But now you have videotape. Everything is on TV. Everything - even a Little League game is videotape by frenzied parents. So we have the ability to sort it out. So why not sort it out?

DONVAN: So if we were to put this into the arena of boxing, a good solid punch that seriously hurts somebody consider, you know, there's - if there's no iron in the glove, if it wasn't below the belt, but a punch to the jaw that really hurts somebody, you were knocked out. That is not, for you, an issue because boxers assume when they go into the ring that they can get badly hurt.

HAM: Right. It's the assumption-of-the-risk angle. And in boxing, the fighter assumes an awful lot of risk, even risk of blows that aren't necessarily legal - a rabbit punch, a punch below the belt, that sort of thing. In boxing, though, even if you had a bounty program, where - let's say you're in a tournament like the Olympics. And one of the lower rounds, somebody has offered a bounty to take a fighter out and hurt them and get them out of the match. If you could prove it, that might be the kind of thing, even in boxing, that could be prosecutable. How do you prove those kinds of things? Well, it's pretty hard.

But one way is if everybody admits it, like in the New Orleans Saints program, where it was a matter of a program where the bounty was there, it was real, and there was premeditation to cause injury on the field.

DONVAN: How common are sports bounties? You're very upset by the New Orleans Saints one. That's the one that you're targeting to write about. But how common are they, historically?

HAM: Actually, pretty common. I've been involved in the sports business for over a lot of years, and we use to represent athletes, professional athletes for a long period of time when I was affiliated with a national sports agency firm a number of years ago. And I can tell you that the nature of the professional athlete - and they're all different personalities, but they're all very competitive. They will compete about anything. They'll compete about a coin-flipping game, Nerf basketball. I actually had five baseball players in my office one time really go at each other in a game of Nerf basketball. They're competitive guys. So what's happening here is it's not the money so much. The money's on the table, but it's really the bragging rights.

It's a game within a game, and the coaches do it to maintain interest and have a heightened level of interest among these players as they go out there with these side competitions.

DONVAN: And you think the fans are looking for it, too?

HAM: The fans look for the hard hits. They like that as a part of - especially football. It doesn't come up quite so much in baseball. You have a runner sliding into - maybe barreling into home plate. That happens occasionally. You get hard fouls in basketball. I don't think as many of the hard fouls in basketball are specifically to injure. Sometimes they are to send a message to intimidate a point guard from coming down the middle of the lane, that sort of thing. But an intimidating, hard foul is one thing. Something that's premeditated, criminal conduct to take a player out of the game or to take him - or to end his career prematurely is quite something different.

DONVAN: Well, let's put you on the bench for a minute. Let's pretend you're a judge, and we have a case that's been brought. A DA thought there was enough evidence here that a baseball pitcher, when he threw at a player's head, once, twice, three times, third time, hit him and hit him hard, that he crossed the line. And you're a judge on this case. What - dissect this for me, the case where you would argue that - where you would rule, in fact, that the pitcher is guilty and the case where the pitcher is not guilty. What would it take?

HAM: We've gotten into a - the area where we're discussing the - the hypothetical nature of the crime, if you will, versus the ability to prove that the crime occurred. So if I were a judge, I would be looking for, one, was there an injury? Was it serious? Is this worth pursuing, in other words? And was there the requisite criminal intent? You know, in criminal law, there's a certain level of intent that's required. It can't just be negligence. There has to be a culpable intent. It may or may not even be premeditated, but if, in fact, it is premeditated, that's helpful. So then you're looking at determining, like in any other criminal case, what is the likelihood that the pitcher did this by accident, or was there a program involved?

Was the pitcher throwing at other players during the game? Did the pitcher throw at this player? And how about this one: Just like in any other crime, was there motive? What if the guy at the plate had already hit one of the other team's guys, which happens a lot? What if the guy at the plate was actually trying - was caught going out with, romantically, the pitcher's wife - those kinds of things which would provide motive, that could be used in sorting out whether a crime, in fact, occurred. And, again, I'm not in favor of reviewing everything that happens on the field of play to sort it out. But just because we haven't been able to do this in the past doesn't mean we shouldn't do it now if required.

DONVAN: Do you think it would change the game if these practices came into place in the way that you're talking about? Do you think it'll change the game of football?

HAM: I think it's unlikely - sure. It's unlikely to change the games in a material way, I think, particularly football now. The league is heading so much in this direction, anyway, with all the rules that are in place with regard to hard hits, especially on quarterbacks, concussions and all the rest of it. Safety seems to have been the tail that started to wag the NFL dog. So the game is going that way, anyway. I don't think it'll change much. We've had examples of aberrant conduct on the field in football, one of which is probably a crime, regardless of whether we change the law.

For example, the Albert Haynesworth foot-stop. from a few years ago where a player was on the ground after the whistle and Haynesworth decided to rake his cleats over the guy's face, causing 30 stitches. That sounds like criminal activity, but there are prosecutors who would not prosecute that because it happened on the field of play. And my point is let's have a law that gives them the tool to do that if it's that egregious.

DONVAN: Here's Michael from Portland, Oregon. Hi, Michael. You're on TALK OF THE NATION.

MICHAEL: Hi. Thanks for taking my call.

DONVAN: Sure.

MICHAEL: I agree with Eldon. I'm a rugby player. I grew up in Australia. And back in the mid-'90s, a good friend of mine died after being injured on the football field. He was hit in back play. And the...

DONVAN: Can you explain what that is for non-rugby players?

MICHAEL: Sure. So, well, an incident happened previously, and the player had gone off to get patched up by a medic, and then he ran back on. And while off the ball, maybe 20 yards back in play, he ran on and hit my friend. And the result of that was he was taken off the field, taken to the hospital unconscious and died the following day. And, you know, as an event, it was dramatic for a lot of us. We were young, and I, myself, quit rugby after that. And...

DONVAN: Did - I'm just curious. Sorry to interrupt you, Michael, but was it perceived as an assault by the law authorities?

MICHAEL: Yes, yeah. I was getting to that. And...

DONVAN: Oh, sorry.

MICHAEL: ...so he was prosecuted and was tried for murder, and was later acquitted. And it was a fairly public trial in Australia and an overall interesting event. And, you know, I think he should've been convicted, not acquitted. I think it was premeditated. And as Eldon said early, I think - earlier, I think that is, you know, one of the telling things in one of these incidents, is that if someone comes on the field with a premeditated mindset to injure another player in a grievous way, then I think that's a prosecutable offense.

DONVAN: And, Michael, you say, as a result of it, you quit the game.

MICHAEL: I did. I got - it with my last season. I played a few more games. I had lengthy disagreements. Some of the players said, look, if you run on the rugby field, you should expect to die.

(SOUNDBITE OF LAUGHTER)

DONVAN: Really?

MICHAEL: And I found that appalling. And the rugby community was quite split down the middle over this incident. I had several arguments with the coaches who were defending that player. And then, equally, there are other people who agreed with me and felt that, you know, this was an incident that was just acceptable, to end a young man's life. In the game, that's not - as Eldon said, in boxing, you expect to be punched. On a rugby field, you don't expect to be punched in the head. You don't expect to be hit in a way that should kill you.

DONVAN: All right.

MICHAEL: You know, it's a knowingly aggressive game. I think people are aware of that.

DONVAN: Michael, thanks very much for your call. And, Eldon, just...

MICHAEL: Thank you.

DONVAN: ...I want to ask you to comment of that. Is hearing Michael say that the rugby community split, and, I mean, have - is that what you've seen in the cases that you've study on this that, by and large, when it's pretty egregious, do you think that the community involved in the sport tends to see it all the same way? Or is there kind of a 50/50 split on it?

HAM: Yeah. It's not surprising that there was a split, because you do have the old school of thought - in fact, literally, the old school approach - where you'd police these things on the field. It's hands off, all bets are off, and anything's liable to happen. Now, rugby, in particular, is a sport that has a lot of contact, a lot of violence, and there's a lot of tough guys playing it, and it's sort of the personality of the sport. NFL football is a little bit like that, as well. And so you do assume a greater level of risk. The point is you don't assume all risk.

So you can take a ridiculous example. You can say, all right. Out on the rugby field, if one of the guys pulls a gun out and shoots the other one, does that mean it's OK because it happened on the rugby field? I think we'd all agree, probably not. So what if you go to the next level? He pulls out a club. What if he - it's an NFL game, and he pulls off his helmet, and he hits somebody in the face with his helmet? You can take these steps back one at a time. And eventually, it starts to come into focus. There's a point at which what they were doing was not really rugby and something else.

So if this player hit him hard in a way that's not to be expected from the game, and he blindsided him, it was a cheap shot and, on top of it, premeditated, I can understand why the prosecutors prosecuted it. The jury, though, may have been - if it was a jury - may have felt that it was a part of the game, and they refused to convict.

DONVAN: You're listening to TALK OF THE NATION, from NPR News. And Rudy from Cincinnati joins us on TALK OF THE NATION. Hi, Rudy.

RUDY: Yeah. My question is regarding performance-enhancing drugs. You know, I played football, and if I take a hit and I'm assuming the risk of getting hit by an average human being of average capacity, or even above average capacity, that's one thing. But if someone is using steroids or some other performance-enhancing drug to increase their capabilities, does that not then take my - move it past the point where it may be time?

DONVAN: Well, Eldon, that's a very interesting question. It's almost like you're making your body into a weapon. What about that?

HAM: Sure. Well, I get it. The issue would be the nexus between the steroid-taking and whether the body actually really did become a weapon of sorts that was beyond what everybody expected. We go back to baseball, where an awful lot of people, apparently, were on steroids for a period of time during what we call the steroid era now. And even though it was against the rules, it was commonly understood that an awful lot of guys were on steroids.

It might create an extra, interesting, added element if it's not just because the player was bigger, faster, stronger - which many players are, anyway - but if the steroids created a steroid-induced rage. You know, they do have the effect of changing one's personality. And if that caused a rage, which caused somebody to fly off the handle and go after somebody in some way, like high - sliding into second with the high spikes to take somebody out, it would make for an interesting case.

DONVAN: Well, Eldon Ham is a lawyer and adjunct professor at Chicago-Kent College of Law, and his op-ed, "Give the Ref a Gavel," ran in The New York Times. You can find a link to it on our website. Go to npr.org and click on TALK OF THE NATION. And he joined us from member station WBEZ in Chicago. Eldon Ham, thank you very much for joining us.

HAM: Hey, thanks very much. It's my pleasure.

DONVAN: And this is TALK OF THE NATION, from NPR News. I'm John Donvan, in Washington.

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