Last Thursday, All Things Legal tackled… um, took on the topic of an unusual incident that occurred on September 4th at a high school football game in Marble Falls, Texas (about 50 miles northwest of Austin).
The Background on the Spearing Story
During a Friday night game between the Marble Falls Mustangs, and the visiting John Jay Mustangs from San Antonio (apparently there’s a shortage of mascots to choose from in Texas), two members of the John Jay High School team intentionally tackled a referee from behind. The first player used his shoulder to strike the referee in the back, knocking him to the ground. A few moments later, a second player dove head-first at the referee, striking him with his helmet.
A frame of the video taken from before the play began. The referee who was hit is circled in yellow. The top player circled in red was the first to hit the referee, while the lower player circled in red is the one who lowered his helmet and struck the referee after he knocked to the ground.
Both players were thrown off of the team, and subsequently suspended from school. But in one of those situations where technology changes everything, a member of the crowd posted a cell phone video of the blindside on YouTube. Within hours, the incident—and the details behind it—was making national news. Which leads us to our discussion…
All Things Legal’s Take on the On-Field Battery
After outlining what had happened, Craig Ashton summed up the latest updates and gave their initial thoughts on the matter:
“Austin Football Officials [Association] Wayne Elliott said, ‘The first thing we want is that those two kids never play football again.’ I think he’s kind of jumping to a conclusion here, and we’ll talk about that in just a second. The district spokesman is talking about getting involved, but they have to go through due process, because they have to present some evidence, which is fair.
“There is now a report that John Jay High School assistant football coach Mack Breed was placed on administrative leave, as a result of his alleged role in [the incident]. He’s being accused of telling them to do that. Two of the players for that football team were ejected earlier in the game, and there is some evidence—at least some anecdotal evidence, and some hearsay evidence at this point—that he ultimately told the players to do this.
“And if that’s the case, that kind of mitigates this a little bit. Think about, if you’re in the military, and the general says, ‘This is what I want you to do.’ The football program is more like a military hierarchical program. Once the coach tells you to do something, it’s hard for you to say no, right?”
The scene just after the referee was struck by the first player. The referee can be seen in the middle of the highlighted circle, falling to the ground (note his hat falling through the hair to his left). The player is obscured behind him. The player on the left edge of the circle is the second one who hits him a few moments later.
Ed Schade found himself in disagreement with Craig: “It’s hard to say, but you can say no. Even in the military, if it is an immoral act that is absolutely violative of, you know, rights that are laid out, yeah you can say no. This instance, you’ve got a conspiracy, so, they’re both on the hook, all three.”
In contrast with the other two perspectives, Tim Hodson tried to look at the situation through the eyes of the players, and found himself splitting the difference: “It’s easy to say, ‘You have to say no.’ I mean, when you’re in the moment, you’re in the team, the coach is screaming and yelling at you, it’s tough. I feel bad for these kids—in a way, not completely, because the second kid that comes in and spears the guy, that kid is deplorable. He could have paralyzed him, he could have broke his back. He could have done some extreme damage to that ref.
The first player to hit the referee can be seen exiting the right side of the circle. In the center, the second attacking player can be seen lowering his head, just before diving to the ground and spearing the referee, who is obscured behind the dark-shirted #3 player from the opposing team.
“It’s a tough line, I mean, if the coach tells him to do it, that coach obviously should never be allowed to coach ever again, period. I’ve heard some suggestions that the whole team should be suspended this year, and it’s possible, that might be a good remedy, but you’re punishing other kids that had nothing to do with it.”
Ed quickly retorted: “It’s an assistant coach. They could have walked over to the head coach and go, ‘Hey, you know, Coach So-and-So wants us to take this ref out, and spear him.”
Craig found himself siding with Tim: “In the heat of the game, it’s very difficult. When an assistant coach is telling you in the heat of the game, when your emotions are high, and you’re looking to somebody who’s an adult, you’re not an adult, you’re on a team, it’s a violent sport, he says, ‘Spear that referee,’ or ‘that umpire…’ that has to be taken into account. I’m not saying that absolves the kids from what they did, right? You’ve got to take into account their age, the fact that perhaps this was an order coming down from [an] authority on the team who you’re supposed to follow, and it’s clearly an assault and battery…”
The mention of assault and battery prompted a sudden change in focus for Craig, who started examining how the attacks would be examined in a legal context: “Well, it may not even be an assault, because [the ref] didn’t see it coming. An assault is the apprehension, in other words, the understanding of harmful or offensive contact coming your way. He didn’t see it; clear battery, which is harmful or offensive contact. Criminally speaking, if you throw the helmet in, is that a weapon? Does that make this assault with a deadly weapon?”
Here, Coach Phil weighed in with his practical (and powerful) perspective: “The way it’s used… I think it is. [Tim pops in to voice his agreement.] And now I think the biggest thing issue here is, when you see the video, the video just clearly defines everything… When you see the video, those kids, both were safeties, came up from 25 yards*—UP THE FIELD AT FULL SPEED—to hit that referee from behind.”
*A note: Ed Schade may have meant “25 feet” rather than “25 yards.” A close examination of the video before the play begins—as seen in the first screenshot above—shows that the first player to strike the referee started from a position about 7 yards (21 feet) back and 20 feet to the ref’s left. A bit of math indicates that the player ran a diagonal of about 29 feet before hitting the referee in the back. The second player started five yards (15 feet back), and 30 feet to the ref’s right, giving him a run-up distance of about 33 feet.
And now, back to Ed: “Okay, that was an ambush… They talk about it, about banning them forever from playing football in high school; I’m right behind that, because, they had a choice. And if you listen to their attorney, I agree with them completely when it comes to the fact that this should not happen in civilized society. Ever.”
At this point, Craig introduced more of the complicating factors in the case, and examined the various legal options open to the referee: “Yeah, the mitigating issue I spoke about was that… there also is an allegation that the umpire used racial slurs, which, I don’t know whether or not it happened. It seems a little bit self-serving to say that, ‘You know, you used the N-word, and therefore that’s why I did it.’ But you know if that’s the case, then that’s another mitigating factor. Does that absolve you from the battery? No way.
“But the punishment should be, should account for, did the coach tell them to do this? How old are these kids? Are they 16, are they 15, are they 17, are they 20? Ultimately, were they called the N-word? If all those things are in there, then it doesn’t absolve them from the criminal act, or even the tort, because he could sue those players for the medical expense, lost income, and pain and suffering. Insurance doesn’t cover intentional acts, but you could make the argument, ‘Look, if that program knew that that assistant coach had a history of making these sorts of requests, and they still hired him and didn’t fire him, that’s negligent hiring.”
When you hire an employee without doing due diligence, you’re civilly response for their actions. Even battery.
“And then you go beyond the intentional act to negligence, hold the school district responsible, and then the referee could sue them under the cause of negligence—negligent hiring—for their medical [costs], lost income, and pain and suffering, and insurance would cover it. If it’s assault and battery, ain’t covered, I guarantee you the 17-year-olds don’t have assets. And probably, the assistant coach doesn’t either. So your chance of recovering is pretty zero, from a civil perspective. Criminally speaking, it’s the state of Texas determining whether or not they’ll prosecute.”
The All Things Legal team went on to discuss a variety of aspects of the case, including the fact that while referees assume the risk of being hit, because the players intentionally struck the referee—and during a play in which the quarterback was merely kneeling the ball to kill time—the assumption of risk does not waive the referee’s right to sue for compensation. In addition, if the incident had occurred in California, then the referee would be able to make a worker’s compensation claim, due to being injured while on the job.
Regardless of how the situation evolves, it’s clear that this case will continue to be an interesting one to follow for quite some time.
