It seems pretty clear the NFL is out to change the game by vigorously enforcing certain rules against certain kinds of tackles. (What those rules are is anyone's guess; I have for years been unable to find or be issued an official NFL rulebook.) So let's say a few years down the road a wide receiver is hit by a safety while the receiver is leaping in an attempt to make a catch. Assume the worst. The hit is a blow to the head; serious, long-term injury to the receiver follows. Assume further that the hit was intentional and that the safety is unrepentent. "It's how I play the game," the safety says. What can be done?
League discipline is one thing. A league fine, however, is not going to help the injured receiver deal with a diminished life, one that might involve expensive surgeries, extensive rehabilitation, and specialized equipment. Nor will a league-imposed suspension of the safety assuage the injured receiver's lifetime of diminished capacity and circumscribed activities. He may be confined to a wheelchair and worse. I'm not trying to sound like a plaintiff's lawyer here, but you see the point. What if, in an attempt to address these serious consequences, the receiver sued the safety?
Here's the likely answer: no matter what the NFL rulebook says, no matter how harshly the league punishes illegal hits and educates its players about them, devastating helmet-to-helmet hits will always be "part of the game." In other words, the injured receiver will lose his suit. The NFL cannot change the game of football.
1. It might seem preposterous that the NFL cannot change the game of football. One would think the NFL could make any change it pleased. It could give teams three downs to make ten yards, it could widen the field, it could make touchdowns count for ten points, it could tape its quarterbacks in bubble wrap. How ever the NFL defines the game is the NFL game. The same could be said, one might think, of any other sport. The leagues make up their rules. All sports are just made-up games with arbitrary rules. There is no game of "football" apart from the rules that define it. Right?
2. Wrong. The last surviving Platonists in the world have somehow found their way into federal and state judgeships. For unexplained reasons, judges believe that there is a concept of "sport" that in some undefinable way exists apart from the sport as it's played. They believe that the game has certain aspects to it that are part of that game, even if the game and league officials have stated repeatedly that that particular aspect is not part of the game, and have arrayed rules against it and punish it severely when it arises. Sound incredible? Courts have held that physical checking is part of the sport of hockey even in a non-checking hockey league. Courts have found intentionally thrown beanballs to be part of baseball despite rules against them. This zaniness reached its zenith when the U.S. Supreme Court declared in the Casey Martin litigation that "walking" is not part of the game of golf, at least at the PGA level, even though the PGA had an explicit, unambiguous rule that said it was!
3. You see, courts are a long way into the business of creating or divining a concept of a sport that "exists" in court opinions, and not on the playing field. No matter what the NFL does, even if it renames the sport "rugby with helmets," as Steve Young jocularly suggested on television, hard hits to the head will for a long time be part of the sport.
4. What this conclusion means from a legal standpoint is that league discipline of wayward players making illegal, vicious hits will be the end of the matter. Neither suits for damages (tort) nor even criminal liability will help restrict the violence of the NFL. Should the law have a role in regulating on-field violence?