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Tuesday, March 06, 2012

Guest Post by Ken Simons: The NFL Bounty as a Teachable Moment

Ken Simons (BU) writes:

The controversy over New Orleans Saints football players paying a bounty for injuring an opposing player is a telling instance of the distinction between purpose and knowledge--specifically, between purposely causing injury and knowingly causing injury.

Why such outrage over the bounty, but not nearly the same outrage over intentional hard hits that predictably cause injury? One explanation is the general distinction between purposely causing a particular type of harm and knowingly (or recklessly) causing that harm; the first is much more difficult to justify than the second.
  
We can distinguish:   
A. Intent to injure another player.  
B. Intent to hit the other player hard, as hard as the rules allow (including an intent to cause pain to the other player), which the actor knows has a high chance of injuring the other player.

In both cases, the ultimate purpose may well be the same: competitive advantage, by intimidating the other team’s players.  But there is a significant moral and legal difference in the intended or chosen means.

In a bounty system, the player acts with intent A.  The player only obtains the bounty if the injury occurs.  His chosen means is to remove the player from the game via injury.  He must, to receive the bounty, do whatever is necessary to ensure that the opposing player suffers physical injury.  (If the first hard hit does not succeed, he must try, try again...)  This conduct is exceedingly difficult to justify, and in this context, it is indeed unjustifiable.  (In boxing and some other sports, to be sure, such an intent may be justifiable.)
By contrast, in a more typical "aggressive defense" system, the player acts with intent B: he at most has knowledge that he is likely to injure another player (or that he poses a significant risk of injuring another player).  But his chosen means is not to remove the player from the game.  Acting with this type of "intent" is much easier to justify.
This distinction is, of course, also drawn in many other contexts.  It is unjust (and contrary to international law) to target innocent civilians in wartime for killing, even if this would secure a military advantage.  It is not always unjust (and is not always contrary to international law) to bomb a legitimate military target, knowing that this will unfortunately cause some civilians casualties (subject, of course, to proportionality constraints).
I do not suggest that the purpose/ knowledge distinction is the only source of public outrage over the Saints' "bounty" system.  Another possible source is the egregiously quid-pro-quo nature of paying a bounty.  Any bounty system makes it uncomfortably clear how much the NFL rewards violence.  But I doubt that the payment of bounties is the whole explanation.  Suppose, for every "hard hit" or every successful sack of a quarterback, a player received a financial reward.  I doubt that serious outrage would be the reaction.

Posted by Dan Markel on March 6, 2012 at 11:36 PM in Criminal Law, Current Affairs | Permalink

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Comments

This is a wonderful post, and expressed in Ken's typically careful way.

I had two thoughts. First, it is sometimes the case that one can imply purpose from knowledge alone. For example, in the law of conspiracy, sometimes a supplier of lawful goods/services for an unlawful purpose can be convicted of conspiratorial liability if he knew about, but did not necessarily intend, the target offense. So suppose C coach and P player make an agreement that P will "hit other players extremely hard," and by making that agreement C knows that P will in all probability be intending to injure other players, but C will not himself intend that injury. I understand that C is not a supplier in this case, but isn't it a reasonable intuition that C is just as morally culpable (or only very slightly less morally culpable) whether he knows or intends?

The second thought is related. Apart from the appalling optics of a formalized bounty system, I am having a hard time with this story. In particular, I have difficulty seeing the following situations as very distinctive:

Situation A: Player is encouraged daily to destroy opposing players. It's drilled into him every day and every game as the primary function of his job. His salary is structured in such a way so that particularly powerful (or, vicious, if you prefer) hits earn him a series of financial rewards/incentives, even if it isn't blatantly stated in quite these terms. And he knows that if he does not deliver bone-crushing hits, he is likely to be replaced by somebody else who can and will. In fact, a significant component in the system of valuation of certain kinds of players depends on their capacity to inflict physical hurt, and this is communicated, even if not in just the way I've expressed it here, to those players.

Situation B: Same as A, except that now there is a formal agreement that the injuries Player causes will net him more cash.

Posted by: Marc DeGirolami | Mar 7, 2012 1:06:44 AM

To Marc's second point, we might keep in mind this recent story in the New York Times about hockey enforcer Derek Boogaard: http://www.nytimes.com/2011/12/04/sports/hockey/derek-boogaard-a-boy-learns-to-brawl.html.

And to Ken's point that in boxing, this same intentional conduct "may be justifiable" (and related to Marc's second point as well), on what basis can we feel comfortable distinguishing the two actions? Why is payment for intentional, debilitating injury justifiable in one sport but not in another? I'm not sure it's enough to say that "the rules of the game" provide such justification, as that seems to beg the question. (And, to be clear where my sympathies lie, it's not with boxing, although I can see why many find it to be a compelling spectator sport, in the same way a crowd will form around a schoolyard fight.)

Posted by: Laura Heymann | Mar 7, 2012 10:48:46 AM

I'm not sure if the example shows the difference between acting intentionally and knowingly, on one hand, or the difference between acting intentionally and recklessly, on the other. The latter distinction is pretty intuitive to students, I find. The former distinction is harder, but the football example is tricky because the great majority of bone-crushing hits do not cause injury. As a result, it's not clear why the player would have a belief to a high certainty that any particular hit would cause injury -- or under what circumstances he would have that belief but not also have a purpose to cause injury.

Posted by: Orin Kerr | Mar 7, 2012 12:21:26 PM

Orin's is a nice point -- but I am not certain how it affects the example.

Is what we are interested in C's or P's knowledge that any particular hit by P will cause injury? Or is it C's knowledge that P is generally intending to cause injury by his hits, and perhaps even C's purpose to incentivize hits which cause injury (through salary mechanisms and other methods, including the kind that Laura refers to in the story), even if the actual probability that an injury will occur with respect to any given hit is relatively small? I would have thought the latter, but I'm now not so sure how to analyze the issue.

Posted by: Marc DeGirolami | Mar 7, 2012 12:48:02 PM

"Why is payment for intentional, debilitating injury justifiable in one sport but not in another? I'm not sure it's enough to say that "the rules of the game" provide such justification, as that seems to beg the question."

The real issue is consent. Oppsoing players assume the risk of incidental injury, but they do not consent to intentional injury. The scope of consent is reflected in the rules. In turn, the rules reduce certain risks without entirely eliminating them. Bounty hunting is impermissible -- and it might even be criminal -- because it increases the risk of injury beyond the limits of consent. In boxing and MMA, the scope of consent is broader, as every fighter knows before entering the ring.

Posted by: S. Lubet | Mar 7, 2012 1:34:04 PM

Thanks to all for the thoughtful replies. Some reactions:
1. I see Mark's Situations A and B as different: in A, hard hits are encouraged, but there is no distinct incentive to actually cause injury; while in B, there is. I do agree with Mark that the bounty system per se isn't the main culprit. Suppose a team decided to count, as one factor in setting player salaries, the extent to which a player successfully injured opposing players. That would be almost as outrageous as a separate bounty for each instance of causing such an injury.
2. Orin is right: in almost all real-world cases, the player who deliberately hits hard at most is reckless as to the risk that any particular hit will cause injury. But even in the rare case where he knows that his hard hit is likely to injure (perhaps because he knows that the other player has a preexisting injury), that is not as egregious as aiming at the other player in order to cause injury (rather than in order to shake the other player up, etc.).
3. Mark, by "knowledge" I mean a player's knowledge of what effects will follow from his individual act, not from a series of acts or of a career playing football. Once we expand "knowledge" to the latter, knowledge is much easier to establish, but I also think its moral and legal significance is diluted. (An interesting question why; but a different issue!)
4. Laura and S. Lubet raise important points about whether and why intentionally injuring another is acceptable in some sports but not others. I agree that consent is part of the explanation, but I'm not sure how far it goes. Even if all NFL players agreed to allow bounties for intentional injuries, I would object to the practice, as would most of the public, I suspect. So, should we object to intentional injuries in boxing, too, even though this would dramatically alter or perhaps abolish the sport? I think it may be possible to justify the sport of boxing, if appropriately regulated, but I certainly respect the arguments to the contrary.

Posted by: Ken Simons | Mar 7, 2012 10:18:28 PM

Considering that there is an entire television series based on the thesis of a pet kangaroo....

http://en.wikipedia.org/wiki/Skippy_the_Bush_Kangaroo

I assert it isn't a novel idea.

As an aside, I do know an Aussie family that has a pet kangaroo. It sleeps on the couch in the parlor at night but it can hop around the property during the day. They assert that roos are much better guard animals than dogs.

Posted by: Daniel | Mar 8, 2012 2:40:28 AM

Please delete that comment above I do not know how it got posted to this blog when it was intended for another blog. My apologies.

Posted by: Daniel | Mar 8, 2012 2:42:59 AM

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