A frequent source of litigation in the sports world occurs when a player is injured during an in-game fight. 

Generally, the law considers a player to have granted to consent to all types of physical contact that occurs in the natural flow of a sporting event and is within the rules and “custom” of that type of sport, provided that such physical contact is not premeditated and malicious.  For example, a hockey player who is injured in a typical fight during a professional hockey game has little recourse to the legal system because such fights are considered to be a “normal” hazard of playing professional hockey and, in fact, are considered by many to be an attractive part of the game. 

However, if a hockey player were to bring a weapon on the ice to use in a fight or were to plan a particularly vicious attack, the injured player may well have both criminal and civil causes of action against the offending player.  Similarly, if a college basketball player were to start a protracted fight with another player during a game, the player who started the fight might be liable since protracted, hockey-style fights are both prohibited by the rules and are not the norm in the world of college basketball.

The Supreme Judicial Court of Massachusetts, the highest court in the state, recently had to address this issue, and take it a step further, to determine whether a coach may be held liable for the behavior of a player when that coaches has encouraged his players to play aggressively.

On December 22, 1998, Manhattan College played a non-conference game at Boston University.  During the second half, several players with both the Jaspers and the Terriers went up to get a hotly-contested rebound.  The referee called a foul as several players on both squads came down in a scrum and began elbowing each other.  Kenneth Kavanagh, a player for Manhattan, ran to break up a scuffle that was developing between one of his teammates and a BU player, but another Terrier, senior Levar Folk, punched Kavanagh in the nose.  The referees finally got control over the situation and ejected Folk from the game.

Kavanagh was treated on the Manhattan bench for what turned out to be a broken nose, and returned to play later in the second half.  Boston University went on to win the game, 66 to 46.

Pursuant to NCAA rules, Folk was suspended for one game but no further disciplinary action was taken against him by the university.  After the game, Folk explained to BU coach Dennis Wolff that he had “lost it.” 

Kavanagh sued Boston University, Folk, and Coach Wolff, seeking an unspecified amount of damages for his injuries.  Kavanagh claimed that Coach Wolff’s “aggressive demeanor on the sidelines…and animated style of coaching…effectively pushed Folk beyond the boundaries of aggressive play into criminal violence.” 

The Massachusetts Supreme Court noted that Folk had no history of violence on the court or off.  Boston University presented evidence to the Court that when Coach Wolff recruited him, Folk’s high school coaches frequently referred to him as “a good kid” and said that they had no reservations about his behavior during games, at practice, or off the basketball court.  During his previous three and a half seasons at BU, had never engaged in anything resembling physical violence against a teammate or an opposing player.

The Court discovered that Folk had been disciplined by BU for three infractions prior to the incident with Kavanagh.  During the 1997-1998 season, Coach Wolff had suspended Folk for several games when he engaged in a heated, but not physical, argument with Wolff over the amount of shots he was taking during games and his failure to take an exam for one of his courses on the day specified by Folk’s professor.  In March 1998, Folk received a written warning when he was caught consuming an alcoholic beverage in another BU student’s dorm room, and, in October 1998, Folk received another warning from residence life staff for playing his stereo too loudly.  Neither of the latter two incidents involved violence or resulted in any further disciplinary action of Folk. 

The Court concluded that Folk did not, in fact, have any propensity to engage in violence of which Coach Wolff should have been aware, and noted that “by their nature, competitive sports involve physical contact between opposing players and…some degree of aggressiveness is essential to athletic competition.”  The Court noted that under the law of Massachusetts “an injured player must show that the other player’s conduct amounted to recklessness before the law will impose liability…[and] utilizing a standard of recklessness, as opposed to mere negligence, furthers the policy that vigorous and active participation in sporting events should not be chilled by the threat of litigation.”  The high Court found that since there was no evidence to indicate that Folk acted in a reckless manner, he could not be held liable for Kavanagh’s injuries.

Turning then to the issue of the liability of Coach Wolff and Boston University itself, as the employer of Wolff, the Court noted that “Just as players are entitled to play aggressively without fear of liability, a coach may properly encourage players to play aggressively.  Indeed, a coach’s ability to inspire players to compete aggressively is one of a coach’s important attributes.  The mere possibility that some players might overreact to such inspiration or encouragement should not, by itself, suffice to impose liability on a coach.” 

The Court also rejected an argument by Kavanagh’s attorneys that by failing to substitute for players who were committing fouls, Coach Wolff was implicitly encouraging his players to engage in inappropriate behavior on the basketball court.  The Supreme Judicial Court quickly dismissed this argument as it would, essentially, require the high Court to second-guess Coach Wolff and intrude upon the authority of referees.  The court stated that “Under the rules of any sport, fouls or other violations carry their own penalties, and it is up to the officials refereeing the competition to enforce those rules and impose those penalties…It is not [required] that a coach remove a player who may, comfortably with the rules of the sports and the judgment of the referees, remain in the game despite the infractions allegedly committed.” 

In other words, the Massachusetts Supreme Court found that Coach Wolff’s behavior “amounted to nothing more than aggressive coaching,” and that Folk had no history of or propensity for violent behavior nor that he engaged in reckless behavior by punching Kavanagh.  The Court entered judgment in favor of Folk, Wolff, and BU on all of Kavanagh’s claims.

The case is Kavanagh v. Trustees of Boston University, 440 Mass. 195, 795 N.E.2d 1170 (2003).

Edward N. Matisik, Esq., is an attorney in Washington, D.C. who specializes in the law of high education and nonprofit charitable organizations. 

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