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Professional And Amateur Athletes And The Law Of Assumption Of Risk

If you have tuned into any of the events of the 2010 Winter Olympics taking place in Vancouver, you undoubtedly have seen amazing moments of both artistry and athleticism.  Despite all of the understandable concerns over the weather and the lack of snow at the various sites of competition (at the same time that nearly every state in our country had snow on the ground somewhere), the Olympic Games have pressed forward.  Perhaps in part due to the unpredictable impact of the weather and also simply due to the intensity of the sports being showcased, you probably also have seen a few of the injuries that have taken place on the tracks and the hills.  And, of course, there was the tragic death of Georgian luger Nodar Kumaritashvili before the Games even began.  These frightening instances bring up questions regarding the assumption of risk that both athletes and observers take when choosing to be a part of a sporting event.

The legal definition for “assumption of risk” is

an affirmative defense that the plaintiff cannot receive compensation for injuries from the defendant because the plaintiff freely and knowingly assumed the risk of injury and relieved the defendant of the obligation to act with reasonable care.

When a college quarterback in Texas takes to the field on a Saturday night, he cannot sue the linebacker on Monday morning if he is sacked too many times and sustains serious injuries.  Pain and broken bones are understood to be possible outcomes for those who choose to contribute their skills to a football team.  Likewise, if you are in a seat along the third base line and become so engrossed in a conversation that you fail to see the foul ball that is speeding straight towards your head, you cannot bring a lawsuit against the man who runs the sound system because he did not grab the microphone and yell, “Look out!”  You chose to place yourself in these potentially dangerous situations.  You assumed the risk.

The idea that assumption of risk is an affirmative defense means that there is some reason to limit, excuse, or avoid criminal culpability or civil liability.  If criminal charges or a request for compensation has been made, a defendant must “affirmatively” present evidence that a shared understanding of the potentially dangerous environment existed among everyone in attendance.  In other words, once the notice is displayed during Detroit Red Wings games to watch out for flying pucks, the organization has met its obligation to remind spectators that they may leave the arena with fewer teeth than when they arrived.  If you visit the website for campus recreation at Texas A & M University, you quickly will spot the consent form that all participants must sign before being allowed to engage in a volleyball or flag football grudge match against a rival fraternity.

Are there instances, however, when the environment in which an athlete or spectator finds himself goes beyond what should be deemed acceptable in terms of its risk?  A fan of the Dallas Cowboys who chooses to attend a game at the home of division rivals Philadelphia Eagles while wearing a brand-new Tony Romo jersey may know that he will not be the most popular guy in his section.  However, does he assume the risk of landing in a hospital following an altercation with five guys who thought that Michael Vick did not go far enough in teaching those dogs a lesson?  And, to put the focus back on the Olympics, do these world-renowned competitors have the right to sue if officials did not display enough diligence in clearing a bobsled track for safety after two straight days of sleet and a violent collision occurs?

There are likely no athletes, whether they be a professional or a champion of the weekend battles in the backyard, who have escaped their sport of choice without an occasional physical injury.  Do not expect to engage your body in voluntarily, aggressive contact with another human or an intimate object in some way propelled by human strength and leave the experience without any wear on your body.  However, there may be legitimate instances in which the damage you sustain is not consistent with the risk you assumed.  If you are an athlete working under a signed contract, perhaps you have a clause that offers you financial compensation in the instance that you are injured while playing in an environment or with equipment that does not meet professional standards.  On the other hand, what if you face a career-ending blow from an opponent who does not play by the rules of the league in which you participate?  If you believe that you have suffered in ways that extend beyond the expected assumption of risk, you should contact an experienced sports or personal injury attorney who will be able to determine the merits of your case.  Professional athletes operate in a high-risk, but also highly lucrative, field.  Make sure that you are protected and supported to the fullest extent of the law.

About the Author

Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino’s practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com

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