The big concern I have with the NFL is that a court is going to rule that, basically, you may not engage in a contractual obligation that will destroy your life or irreperably damage you in some fashion. In Washington State, there are several people in jail for consensual BDSM activities. People signed on a dotted line, consenting to being beaten or whatever, they WERE beaten, they were HAPPY with the results, but the state came in anyway and prosecuted the damagers on behalf of the damagees, even though the damagees didn't want charges brought. They used domestic crime law, basically, created so that the "abuser" could not intimidate the abused into silence.
Those people lost a case in which no one wanted prosecution and everyone was okay with the bodily harm inflicted. They're in jail now.
You would assume that this wouldn't happen in the workplace. It's not like crab-fishing is a safe activity - people die in safety accidents every day, or have their lives cut short and physical hardships created because of the jobs they do. But it's absolutely feasible that a court could rule that no safety equipment could make football safe or halt brain injury, and it would become necessary to "save football players from themselves" because you cannot consent to unpreventable bodily harm. If you were 100% guaranteed to lose a finger every time you took a bungee-jump, there would be some eight-fingered people out there because they just HAD to do it. And then bungee-jumping would be illegal.
If brain injury is a guarantee, then football is dead. I'm still pissed off that Riddell is not using more advanced helmet technology, but at some point you figure they'll get there. If there are no kids playing football because no high school or youth league can get insured for it, though, then it won't matter - there will be no football, certainly not as it's played now.
If the NFL hid concussion tests and the long-term ramifications of concussions from the players, then they're gonna get killed in court. If they are changing their processes and procedures as this new information (that they never had before) is produced, then one would hope they are not crushed in the courtroom, but either way the viability of the league and the sport is based on some ability to prevent these brain injuries. Bones heal, and any construction worker will tell you it hurts when they roll out of bed at 50 just like it hurts a former football player - some things are just hard on the body.
Hard on the brain is different. A sport that turns the brains of its participants into jelly will not survive much longer in this legal climate. They're running the tests on boxers and MMA fighters now, trying to get yearly brainscans from a number of participants to form a database. Once they have it, I expect some things will have to change. Maybe boxers will go back to headgear. Maybe football will have to be played standing up to avoid head collisions for linemen on every play. Maybe helmet technology will have to be radically updated to independent plates that can distribute shock...oh wait, we have that technology, Riddell just won't license it.
But whatever happens, I hope those sports are still around in some fashion. I will say as a former pro wrestling fan, though, that the effect of wrestler deaths and head-trauma aftermath has made me unable to watch that athletic endeavor any more. Chris Benoit, good Christian man that he was, killed his entire family and hung himself with his weight equipment. His brain looked like swiss cheese from all the headbutts and cage matches and chair shots he endured over his career. He was my favorite wrestler. It broke my heart to see the greatest technical wrestler of his era come to that horrific end, but he was one of dozens I watched slide slowly into the abyss of brain injury and early death. His tribute show was the last weekend of wrestling I ever watched or ever will watch. I can't support that kind of outcome for the participants of a sport I love.
I hope we don't get to that point with football. I hope that the precautions the sport takes will be enough to keep it viable and true to the sport while also allowing the players to have a quality life after the game.
And I hope that the NFL hasn't done anything really stupid (like burying concussion data) that would give an activist court a reason to demolish a sport I love.
~G
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As a True Believer in the values of the Founding Fathers, I'm not quick to hand the government control over the personal choices of individuals. However, there is a point at which choice crosses the line. Society doesn't permit ritual duels on a reality show - sign a contract, both agree to a life-or-death manhunt, survivor gets five million. We think that Mojician will confirm that if two men voluntarily enter into a duel, the survivor is chargeable with first-degree murder.
It's hard for some young folks to get ahold of the idea that you can be committed to a cause (e.g. the government is there to punish evil, not to parent the citizens) while still applying those principles in nuanced ways. My takeaway from Matt's post was that --- > he believes that the NFL is over the line as it pertains to the damage in inflicts on its players. Sure, some things are over the line. I don't believe that riding a motorcycle without a helmet is even close to that line, but I believe that ritual duels are, and it's possible that the NFL is.
I always wonder about intent-to-injure ... a Saints defender trying to take out a QB's ACL ... and whether it should be charged as a crime off-field. Wonder whether Mojician would go for a law that allowed prosecution for this specific behavior.
Mojiician - if you just joined us, he's a trial lawyer - with a sparkling post on the subject. Kibitzing in italics...
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Its good to have a hurt conscience for people who are incredibly reckless with their bodies. We see it every day. This morning I passed a streets worker who was sawing a hole into a street with a carbon-disc saw and spewing clouds of powdered concrete into his face without a respirator. Will that dude live to see seventy? I don't think so. Did I stop to say anything, such as "get a mask, you're killing yourself". Nah. I just walked by. He probably already knows that breathing rocks is bad for him. Next time maybe. . .
(Breathing rocks is bad for him ... heh! - jjc)
People are also killing themselves with sugar, processed foods, partially hydrogenated soybean oil and the like. If you think diabetes is no big deal, wait until the doc saws off one of your legs (a medical doctor, not the proprietor of this site who wrote a dissertation on pitching wind ups).
(The sugar thing especially. I fully expect to see Coke used, one day, as a springboard into passing laws that give government fascist control over our personal lives. You know, diabetes costs the system X number of dollars, and therefore we have the right to regulate sugar consumption, and therefore... did you see in Demolition Man how Sandra Bullock intoned, "Salt is bad for you, hence illegal"? It ain't my side of the fence that is battling to move the ball in that direction, kiddies. -jjc)
We see this kind of stuff every day. Ghost is right. Football players are ruining their brains for a few years of fame and fortune. My favorite example of a celebrity who sacrificed his brain for fame and fortune is Mohammed Ali. His great scheme was to allow George "I can kill a normal man with either hand" Foreman to beat him to death until Foreman got tired and passed out from moving his tremendous arms. It worked great. Nowadays, Ali can barely talk, while Foreman is still in good health and still selling his grills. Was it worth it? Ali has his pride intact. He gets to call himself "the greatest" and doesn't seem to mind the terrible price he paid. Both Ali and Foreman seem to be happy.
There are even more dangerous entertainments than football. Car racing comes to mind as the most deadly sport. Also, David Blaine, the illusionist has come close to killing himself several times. I hope he doesn't wind up like Houdini, but isn't that why people pay to watch him?
(Or the guys on JackA**, like Johnny Knoxville, whose courage and pain tolerance dwarfs that of NFL players ... compelling description of the Rumble In the Jungle. In 30-odd years that's the best short summary I've EVER read. - jjc)
Now as far as the audience: Are NASCAR fans aiders and abetters to murder? Sure. The elements fit. It is known as reckless indifference murder, depraved heart murder, or murder in the second degree in most places. You commit it by doing something that creates a substantial and unjustifiable risk of death, not caring, and then killing someone. Nick Adenhart's killer was convicted of this. He knew drunk driving was bad because he might kill someone, it was his second offense, and he did it anyway. An aider and abetter is someone who encourages or facilitates an offense. When you look at racing, a fan knows that a certain percentage of race car drivers are going to die from horrific car wrecks, and he doesn't care, and he pays to promote the sport. In fact, most race fans like a little bit of violence. Last I heard, Daytona, and Talladega, the two fastest and most dangerous tracks in the U.S. are the most popular.
(My wife's dad watched specifically hoping to see deaths. When I met him, he was watching a motorcycle race, I asked about the Seahawks. My future wife said, don't you think a football pass is more exciting than watching guys go around in a circle? He snorted loudly. HAAA! "How'd you like to see a guy wipe out doing a hundred miles an hour!"
Mojo's description of 'reckless indifference murder' puts in front of us the entire question: is it okay for societies to 'wink at' inconsistencies in our own laws? What is the justification for our saying, okay, in MMA it is okay to try to injure other people? What is the legal basis for our looking the other way? I'm not saying there is none. I'm curious as to what the underlying logic is. - jjc)
Fight fans (I've been guilty of this) are the worst. When Brock Lesnar throws someone down and starts smashing their head, everyone cheers.
Are these things right?
(The flip argument is that death bothers us, but everyone dies. Is it really a tragedy when someone accomplishes something great and heroic, finishes their work, and then dies at a young age? People are inspired by greatness. It distracts them from the pain and tragedy of life, which for many people is short, futile, disappointing and obscure. The human turnover is 100 percent per century and people are measured by how they lived, not how they died.
Picture us all lining up to be born, as little babies as it were ... taking our choices. Doctor, lawyer, rock-breather :- ), man, woman, athlete, blogger, each associated with 67 years of life, 74 years, early Alzheimer's, high IQ, low IQ, good looks, bad looks, whatever... only 1 in 25 babies are born in America, guys.
Who is to say that the length of life is the first, or only, consideration? - jjc)
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Thanks Mojo!
- Jeff
Comments
Violent sports have no legal justification, such as self defense, defense of another, defense of property, etcetera. The way that a person can commit assault and battery in MMA and not get into trouble is that the person has a license of some kind. Alaska has a wrestling and boxing commission. If you abide by its rules, then you have a license to legally hurt people that enter the ring or mat or whatever. This is what is known as a "sanctioned" event, as in violence is sanctioned in this instance by the state of Alaska. The law of assaults is partially suspended. Theoretically, two bad enemies could sign up for a Friday night boxing match just so they could legally come to blows.
Of course, your license only extends to the rules of the sport. The police may look the other way for little dust ups at weigh ins, but might not look kindly on a stabbing or an eye gouging. This may work differently in different states.
That's a really bad analogy IMHO. NASCAR deaths are exceedingly rare. For the most part, the cars are so bloated with safety features and such that the risk to life and limb is minor compared to certain NFL positions. Although if someone in a NASCAR race intentionally collides with another, I believe he should be liable in criminal court.
But NASCAR vs. football is a non-starter for me. Foorball has an education problem...we are only now truly becoming aware of how damaging it can be and we need to make families aware of that damage potential before their kids get sent into the football ranks. That's all I'm really asking for.
'they were beaten and were happy with the results' ... HEH! :- ) Actually Clint Eastwood said something like that in his orangutan movie. "I'm gettin' so I like the pain" ...
Legally this is underlining the crux of the matter. In my view, you set yourself up for paradoxes when you try to apply rational, 1-law-applied-equally-for-a-community-of-300,000,000, standards of behavior to --- > behavior that would be called, by George Washington, inherently irrational behavior.
Am not saying that paddling role play between man and wife is twisted, but my hunch is that the BDSM folks who are in jail are not there for light paddling role play.
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Would be interested in Mojician's legal opinion on this precise issue: application of 'common sense' legal standards to people who voluntarily reject the common paradigm. It's going to get real complex real quick. People handle snakes -- in the presence of their children -- in the name of freedom of religion, right?
Let me ask in a (hopefully) surgeon-cool manner: is there a legal ground for the concept of 'perversion'? Is anything classified as such by the State ... amputation in the name of eroticism, necrophilia, etc?
Which is a way for the courts to sign off on the idea that a certain type of lawbreaking is going to be winked at, without losing its overarcing umbrella, right? Or am I interpreting that wrong?
The boxing match between enemies, for example, the State wants to be able to license that or not.
As always, the legal expertise is much appreciated amigo. Am hanging on your every word.
In order to be convicted of a crime the accused have the Constitutional right to be tried by a jury of their peers. People from the same town need to be convinced (beyond a reasonable doubt) that a criminal act occurred. The defendant convinces one juror that it wasn't that bad of an act, not that deviant, victimless, not something he or she is willing to send someone to jail over - and you've got yourself a hung jury and the defendant walks.
Freedom of religion, speech, etc., (any 1st Amendment or other Constitutional rights) aren't absolute. The government can, and does, pass many laws that restrict said rights (like prohibiting shouting "fire" in a crowded theater). If the law is narrowly tailored to meet a legitimate government interest in the least restrictive manner than it will pass Constitutional muster.
Many laws limit pornography or obscenity ('perversions') - those guilty of obscenity fail the Miller test
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
As with juries, as with most crimes, it comes down to contemporary community standards. It's the way the law works...
- Ben.
This might be asking how many angels can dance on the end of a pin but I'm too curious not to ask. How does the law judge MMA practice. Is sparring sanctioned? If not what if a round of sparring gets out of hand and two training partners get vicious? Say it results in an injury and one side wants to press charges. Where on earth would the legal system know where to begin?
What if we weren't to look at immediate death from impact but instead looked at long term brain health like we are with NFL players. Many of the crashes we see in NASCAR where the driver walks away unharmed, he in fact has a concussion. Do drivers who have concussions from multiple crashes over their careers have similar brain injuries as NFL players. If so does that change anybodies mind about the comparison?
Or at the very minimum, playing chicken games where a competitor has to back off or risk crashing - which amounts to the same thing.
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It's stipulated Matty that your original theme is substantial and worthy of consideration. :daps:
from here:
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Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.” Courts tend to inflate the risk and harmfulness of an activity they want to denounce.
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I'm just saying that if "sports violence" becomes a dirty term and we decide we need to protect people from their baser instincts, the athletics exception could be removed or modified to disallow the serious injury exception clause in sports violence. And then football, boxing, hockey (as we know it) and MMA die on the vine.
And pitchers could be sued for beanballs, soccer players for intentional spikes, etc. We'll see. Just because a thing is legal now doesn't mean it will stay that way, and there's nothing that says the way we play sports will continue to be acceptable - especially as more data comes back on the long-term effects of contact sports.
~G
In a sanctioned event, the law itself is suspended, the law is never broken, and courts are not involved. Sometimes, people just have a special license to do things that are ordinarily illegal. Think James Bond's license to kill.
For example: Ordinarily, if a prison warden puts a person to death by lethal injection, it is first degree murder. It is a killing, without a justification, there is plenty of premeditation, and no other mitigating factors. But, if the warden has a death warrant for the prisoner that is properly signed by a judge, or a jury foreperson or whoever, then he has a special license to kill the prisoner. The law sanctioned that killing. The state legislature proscribed death as the penalty for certain crimes, a person was tried and convicted, a death warrant was issued, upheld by appeals courts, and then the governor never called to exercise his ability to pardon or commute. Those collective legal sources combined to create a privelege in the prison warden to commit murder and get away with it.
Courts are rarely involved in sanctioned violence, because the legal defense is well known before a person is ever charged. If society has a problem with the death penalty, it generally doesn't take it out on the prison warden, but instead takes it out on the bad law, or its bad application: the legislature, the judge, jury, the prosecutor, and the governor.
Creating special licenses to break the law is first and foremost the legislature's prerogative. It stems from each state's broad power to legislate health, safety and morals under the Ninth Amendment. It is not ordinarily done by courts. In the Alaska Wrestling and Boxing commission example, the legislature created the wrestling and boxing commission, and gave it the power to license fights and fighting. No cases go to court, because the participants have a perfect defense, which is well known to the police and prosecutors. They don't wink at the license, or condone the behavior, (well they might. The police are usually pretty into MMA), but police or court approval of sanctioned fighting is irrelevant. Law enforcement just knows that convictions for assault or murder cannot be obtained against participants in a sanctioned sporting event, so they don't bother even trying.
So, the reason that people can hurt and be hurt in sports is that the legislature of each state allows it through a special license. The law is majority rule, greatest number of votes wins. This applies to football, as follows: If the majority of people don't care that professional football players are getting their brains smashed, then football will not be illegal. I can imagine that a representative who wanted to run for his state house on an anti-football platform would be tarred and feathered in most states.
Note that there is no inherent right for people to hurt each other by agreement. If it is licensed, or sanctioned, then it can happen, and it is otherwise illegal. A person can be easily convicted for assault, for a backyard MMA event, or even for a consensual sexual game because the activity was not expressly sanctioned by the state legislature. Wierd? Yeah. But that's a nuts and bolts of how it works.
No doubt it's a fascinating topic. And I'll be the first to admit that I have a very libertarian, instantaneous, knee jerk reaction to any nanny state regulation meant to protect people from themselves.
Nobody makes someone take the field in football or the steering wheel in a NASCAR ride Nobody is being forced to enter the ring to fight another man to submission or jump on the back of of a bull to try and ride it for 8 seconds before it bucks him off and tries to gore or stamp him. Nobody makes an X-games junky do handstands on a motorcycle going 50 MPH, 30 feet in the air. They choose to do it for a lot of reasons - adrenaline, fame, glory and - yes - money.
You don't want to watch? Don't watch. But don't sneer at those that do. That kind of attitude will always get a reaction out of me, regardless of the source.
In football, the average career veteran lives to be maaaaybe 60 if you want to be generous. I don't recall ever noting a ton of early deaths among the NASCAR greats of the 70s...because the number of concussions and such is way lower among NASCAR participants than in Football...where they happen by the multiple dozens every year.
there is an old Roman doctrine called volenti non fit injuria. It means that there is no legal harm for informed participants. From what I understand, this is good law for much of the world, especially in Latin America. In Mexico, no one calls for reform if a rally car misses its turn and plows through some spectators. They knew what they were getting into. A Mexican tour guide once explained it to me thusly. "If you don't come back when we blow our whistle, we will leave you out here for the next boat. Because in Mexico we don't sue nobody." (Here being snorkeling on a barren island in the Sea of Cortez).
At some point in the past American lawmakers generally shied away from this doctrine. (I think there may have been a few too many shootouts at high noon that soured lawmaker's stomach for it).
The American system largely abandons volenti non fit injuria in favor of the wierd system of licenses and sanctioned events.
Which system is better?