by Joshua D. Winneker[1]

August 26, 2015

Photo credit: https://www.flickr.com/photos/rocketboom/

Photo credit: https://www.flickr.com/photos/rocketboom/

By now, every football fan, sports fan and anyone who watches the news or goes on the internet knows about the New York Jets’ quarterback Geno Smith suffering a fractured jaw after being punched in the face by one of his own teammates, linebacker IK Enemkpali.  The altercation allegedly centered around Smith refusing to re-imburse Enemkpali $600 for a plane ticket to Enemkpali’s summer camp that Smith did not attend.  The punch was originally described by the Jets as a “sucker punch,” but since the incident, other Jets sources have come out and said that Smith “deserved it” and was sticking his finger in Enemkpali’s face.[2]  Smith is now out of commission for 6-10 weeks.

Whether you think that Smith deserved it, or that the Jets are better off without him, is irrelevant because it is clear that Enemkpali committed a crime by punching Smith in the face.  The police are investigating the incident and even if Smith did not want to press charges, it is up to the prosecutor to decide whether to go forward against Enemkpali.  The NFL is also looking into the fight to determine whether Enemkpali violated the league’s personal conduct policy.[3]

These two avenues are out of Smith’s control.  But what is under his control is whether he wants to file a civil lawsuit against Enemkpali.  Not only was a crime committed against Smith, but the civil torts of assault (if Smith saw the punch coming) and battery (the unwanted physical contact) were also committed against Smith.[4]  A criminal prosecution would certainly aid Smith in any civil lawsuit as the burden of proof in a criminal action is higher than that in a civil action, but with all of the undisputed facts mentioned in the public domain, along with the witnesses, it certainly seems that he has a strong civil case.

You may say why would a teammate sue another teammate?  Well, Enemkpali is not a teammate anymore (he was claimed off waivers by the Buffalo Bills), and this was not a simple pushing and shoving incident.  Smith suffered two fractures and is missing 6-10 weeks, which could jeopardize his entire season and possible future.  Smith would certainly be justified if he went this route.

But, Smith likely won’t do it.  And it won’t be because Enemkpali doesn’t deserve it.  It will likely be because Smith doesn’t want to suffer the consequences that come with being a NFL player that sues another player.[5]

This isn’t the first time that teammates fought and it rose to such a damaging level.  Two of the most famous being Michael Westbrook attacking Stephen Davis when they both played for the Washington Redskins,[6] and Bill Romanowski punching fellow Oakland Raider Marcus Williams.[7]  Both attacked players were injured badly but only Williams filed a civil lawsuit.  Davis went on to continue his football career, but Williams never played again despite working out and trying to join another NFL team.

Why did Williams have so much trouble?  Because as Williams’ agent Lee Kolligian said, the lawsuit put a “chill” on any hopes of a comeback and it raised questions about Williams’ attitude, questions which Kolligian believed were implied in every conversation with teams.[8]

This fear that was realized in the Williams’ situation will most likely cause Smith to not follow in Williams’ footsteps.  The NFL currently does not have any type of anti-retaliation policy in place for situations like this and therefore it does not provide an environment where its employees, like Smith, would feel comfortable exercising what is his legal right to sue.[9]  Indeed, sources from Smith’s own team are coming out and saying he deserved it.  If his own team is saying it, what do you think the reaction will be around the league if Smith is ever back on the free agent market?  All of this certainly would make anyone think twice about filing what is clearly a justified civil lawsuit.


 

[1] Joshua D. Winneker, J.D., Assistant Professor, Misericordia University.  Professor Winneker has published articles on sports law issues in the Jeffrey S. Moorad Sports Law Journal, University of Virginia Sports and Entertainment Law Journal, Arizona State University Sports and Entertainment Law Journal, U.C. Berkeley Journal of Entertainment and Sports Law (forthcoming), Lewis & Clark Law Review (forthcoming) as well as the Philadelphia Daily News, the Cherry Hill Courier Post, the Harrisburg Patriot-News, and the State College Centre Daily, among others.

[2] Bob Glauber, Blaming Jets QB Geno Smith for being Punched is a Disturbing Notion, Newsday (Aug. 18, 2015, 10:05 PM), http://www.newsday.com/sports/columnists/bob-glauber/blaming-jets-qb-geno-smith-for-being-punched-is-a-disturbing-notion-1.10752000.

[3] See id.

[4] See Richard A. Mann & Barry S. Roberts, Essentials of Business Law and the Legal Environment 125 (12th ed. 2015) (describing the elements of civil assault and battery torts).

[5] See Richard B. Horrow, Sports Violence: The Interaction Between Private Lawmaking and the Criminal Law 50-55 (1980) (noting that players fear they will be considered an outcast by both league management and players, decreasing their chances of getting ahead in the sport); Linda S. Calvert Hanson & Craig Dernis, Revisiting Excessive Violence in the Professional Sports Arena: Changes in the Past Twenty Years?, 6 Seton Hall J. Sport L. 127, 148-149 (1996) (stating that because external legal sanctions are discouraged throughout the leagues, players do not bring suit against other players out of fear that their livelihood would be threatened due to ostracism and retaliation); Karen Melnik, Giving Violence a Sporting Chance: A Review of Measures Used to Curb Excessive Violence in Professional Sports, 17 J. Legis 123, 127-128 (1990-1991) (noting that players are reluctant to bring a civil suit against another player due to their fear of being blacklisted around the league, as management may fail to renew the player’s contract when the player is considered a troublemaker).

[6] See Pat Yasinskas, There’s No Room For Football in Westbrook’s Heart, ESPN (Apr. 16, 2008), http://sports.espn.go.com/nfl/draft08/columns/story? columnist=yasinskas_pat&id=3335714.

[7] See Alan Grant, Training Camp Fights Are as Common as Two-A-Days, But There Was Nothing Routine About the Brawl Between Marcus Williams and Bill Romanowski-or What Came Next, ESPN (July 10, 2012), http://espn.go.com/core/espn/magazine/archives/news/story?page=magazine-20050815-article36.

[8] Id.

[9] See Joshua Winneker & Lindsay Demery, Protecting the UnProtected: Creating an Anti-retaliation Policy for Professional Athletes that Exercise their Legal Rights in Participant vs. Participant Liability Contact Sports, 12 Va. Sports & Ent. L.J. 315, 332 (2013) (stating that the NFL needs to adopt an anti-retaliation policy similar to Title VII’s for players that file lawsuits against fellow players).

 

Comments are closed.



Sports Law Publications

From the newest issues of the Jeffrey S. Moorad Sports Law Journal to insightful books by Villanova Law Faculty, there’s something for everyone. View...

Annual Jeffrey S. Moorad Sports Law Symposium

Every Spring, the Jeffrey S. Moorad Sports Law Journal holds its annual symposium on current issues and hot topics in the world of sports law. Past Symposia have covered issues with concussions in sports, agent representation, and more. Check back in the Spring for more information on the next symposium.

Events

Be sure to keep up with Sports Law events at Villanova School of Law and other Philadelphia-area law schools on our events page. View...