Academic

Football Causes Brain Damage. Why Isn't It A Crime?

By Dan Filler

The Times  reports that an unusual form of brain damage, sometimes seen in boxers, has been found in a sixth former NFL player. 

?This is a medically significant finding,? said Dr. Daniel P. Perl, the director of neuropathology at the Mt. Sinai School of Medicine in New York, who is not affiliated with the Boston University group. ?I think with a sixth case identified, out of six, for a condition that is incredibly rare in the general population, there is more than enough evidence that football is clearly strongly related to the presence of this pathology.?

This can't be shocking.  When you watch the punishing hits delivered, and absorbed, by football players you just know  there must be some consequences.  

Sporting  violence has always struck me as a curious space in the criminal law.   Students often argue that a victim's willingness to risk injury or death should vitiate the criminal liability of an aggressor.  Thus, in the case of a killing during Russian Roulette, they contend that there was no murder.  The outcome holds in Root, the drag racing case.  There, after one of two racers died in a crash, a jury convicted the second racer of a killing.  The appellate court reversed on the grounds that the dead racer chose his own fate.    But in most situations, that's simply not the law - and for good reason.  The state has an interest in deterring Russian Roulette (and, perhaps, drag racing) - even if the victims in a particular case are willing.  Of course, sports are an important part of the culture and we apparently have no interest in deterring it through the criminal law.  Fair enough - that's exactly the decision we ought to assign our legislatures. But are there torts risks hovering on the sidelines?   That is a question the NFL's insurers are surely pondering.

Full post as published by The Faculty Lounge on January 28, 2009 (boomark / email).