Category Archives: Sports

When Does An Athlete Assume the Risk of Injury?

Better equipment, more health-conscious athletes and upgrades in technology have led many to believe that sports are safer today than in the past. But to what degree do athletes assume the risk of injury when they engage in sporting events? That was the question recently before the Appellate Division of the Supreme Court of New York. Bukowski v. Clarkson Univ.¸ 2011 NY Slip 5912, 1 (N.Y. App. Div. 3d Dep’t 2011).

The plaintiff (“Bukowski”) was a freshman pitcher on the Clarkson University (“Clarkson”) baseball team. While pitching from an artificial mound at regulation distance at practice, a batter hit a line drive that struck Bukowski in the face. He sued the University for Damages.     

During the trial, Bukowski testified that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching and that he had had an estimated 50 to 100 balls hit back at him during his career as a pitcher. He also testified that he was familiar with the indoor training facility where he was practicing when the injury occurred. Additionally, Bukowski confirmed that he had been informed by coaches that the live practices were going to be held without the use of an L-screen (a screen that pitchers stand behind for protection), and that prior to taking the mound that day at practice, he had observed other pitchers throwing batting practice without the use of an L-screen. The Supreme Court of New York granted Clarkson’s motion to dismiss, concluding that Bukowski had assumed the obvious risk of being hit by a line drive.      

On appeal, Bukowski argued that factual issues still needed to determine, including whether the risk of being hit by a ball was unreasonably enhanced by the backdrop and lighting of the facility and failure to use an L-screen. However, the Bukowski Court cited previous case law that established that organizers of sporting events owe a duty to exercise reasonable care and protect participants only “from injuries arising out of unassumed, concealed, or unreasonably increased risks. Id. at 2 (citing Benitez v. New York City Bd. of Educ., 73 NY2d 650, 654 (1989)). The Court held that voluntary participants in sporting events are “deemed to have assumed commonly appreciated risks inherent in the activity” and that this assumption of the risk doctrine “extends to risks engendered by less than optimal conditions, provided that those conditions are open and obvious.” Id. at 2.      

Despite testimony by an expert that suggested that the use of an L-screen or a darker backdrop could have lessened the risk, the Court determined that the risk of a pitcher being hit by a ball is inherent in the sport of baseball. Id. Additionally, the conditions in which he was pitching were readily observable, so the Court held that such expert testimony was irrelevant. Id. Bukowski also argued that assumption of the risk is not a shield from liability when voluntariness is overcome by “the compulsion of a superior,” and that he did not ask to use an L-screen because he was told that was not part of the “Clarkson way” of practicing. Id. at 2, 3. However, the Court held that this argument only emphasized Bukowski’s knowledge of the risk while lending “no support to his assertion that his participation in the practice was compelled or involuntary.” Id.          

The Court’s decision in Bukowski underscores not only the dangers that athletes face when engaging in athletic activities, but the difficulty they will face in trying to recover damages from any injuries they suffer during those activities as well. Spectators of sporting events are also likely to face this high hurdle (see Falzon v. MLB Enterprises, et al.). Bukowski and other decisions support the idea that, even if technology has helped make sports safer, fundamental risks of injury still exist and courts will generally find that athletes voluntarily assume them.


© 2012 Nissenbaum Law Group, LLC

Can Sponsors Draft Agreements to Account For Potential Lockouts of Professional Sports Leagues?

Labor disputes caused a few professional sports leagues to call a timeout in 2011. For example, the National Football League locked out its players for nearly four months before the league and its players union agreed to a new collective bargaining agreement a little more than a month before the start of the 2011 season. Another example was the labor dispute involving the National Basketball Association.

The cancellation of games and the empty airtime on game nights presents a massive lost opportunity for companies that relied on these events as a means of advertising their product in front of millions of viewers. The legal questions this raises are complex, one of which is what provisions a business can incorporate into its sponsorship agreements with a league that will protect it in the event lockouts impair an originally scheduled professional sports season?

First, many sponsorship agreements include “force majeure” clauses. A force majeure clause generally excuses one party from failing to perform its contractual obligations due to an event that is beyond the non-performing party’s control. These clauses are commonly included in sponsorship agreements, but sponsors would be wise to also include language that incorporates a lockout or similar labor dispute in the definition of what constitutes force majeure. Specifically, the clause should address if and how long such a clause protects the league from its obligations to the sponsor and what the sponsor’s payment requirements are during such a period. The agreement’s language should also be broad enough to account for a variety of labor disputes that would impair the league’s ability to fulfill its obligations. Any definition of “labor dispute” should be broad enough to encompass (or should specifically enumerate) a lockout, strike, decertification, injunction or any other labor-related event that would preclude the scheduled games from being played.

Sponsors should also consider how any absence of games affects the sponsorship term to which the company and league agreed. For example, if an agreement between a soft drink company and a hockey league states that the agreement is to last for five years, and a one-year lockout falls within those five years, how does that affect the term of the agreement? One option would be for the sponsor to have the term that is lost due to a force majeure or similar event be suspended from the amount of time that is counted as completing the term of the agreement. Language could be inserted in the agreement that gives the sponsor the option of extending the agreement for a term that is commensurate with what was lost due to the labor dispute.

While sponsorship payments are generally not due during the offseason, the cancellation of regular season games can complicate what and when payment is due. A sponsor can negotiate into the agreement a reduction in the sponsorship fee for situations in which a labor dispute might postpone the regular season.  Since sponsors generally have to plan their advertising campaigns well in advance of the season, this sort of clause can help the sponsor avoid a situation in which it would be committed to regular payment despite a lack of games.


© 2012 Nissenbaum Law Group, LLC