Managing risk beyond the sidelines:
Player v. Fan

A Thilman Filippini perspective for sports team owners

By Eric Mezmar, Partner
Thilman Filippini

Last fall in Detroit, a handful of basketball players and local fans put on a vivid demonstration of the new realities in sports risk management. When several NBA stars charged into the seats for a bare-knuckles melee with beer-throwing spectators, it was more than a PR fiasco. It was a potential liability inferno.

At least nine fans were injured; the lawsuits and criminal charges are still being sorted out. But notwithstanding the costly settlements likely to ensue, a larger issue is this:

Imagine if one of these highly-conditioned employees of the Indiana Pacers or Detroit Pistons – while on the job – had crippled or killed a fan. All the ingredients for a tragedy were on hand: alcohol, folding chairs, right hooks. As shocking as the brawl appeared on TV replays, in terms of exposure to loss it could have been far worse.

And perhaps will be, the next time. At a pro football game … an amateur soccer match?

Spectators on the field of play are nothing new, of course. Fan interference dates back to the ancient Olympics. By the 1970's we were witnessing such nonsense as "streakers" and Morgana the Kissing Bandit: almost charming in retrospect. Now we are more accustomed to seeing overheated fans confront Little League officials or jump the dugout to attack a first base coach. Down in Honduras, angry soccer fans once burned down a stadium. Monica Seles was stabbed at courtside.

So crazed fans are a known commodity. But player rage is something else altogether.

"This was bound to happen," said one general manager. "We're re-configuring seats and constructing retro-style stadiums to bring fans as close as possible. That creates risk. Not just from foul balls, but p---ed off players."

A number of legal precedents indicate that fans assume a certain degree of general risk in attending, say, a baseball game. Under "limited duty" some courts have held that premium box seat holders – a split-second away from being struck by a 120-m.p.h. foul ball – cannot realistically expect to recover much more than a $4 souvenir and, perhaps, medical expenses.

Errant hockey pucks are another known risk. A few years ago at an NHL game in Ohio a young girl was killed by a deflected slap shot. Hers was an especially poignant case because the severity of the injury – a torn artery – wasn't diagnosed. She walked out of a local emergency room, only to die two days later. The arena, the team and the NHL combined to settle for $1.2 million.

Virtually overnight, protective netting was installed above the standard Plexiglas barrier at every NHL venue.

But netting and "limited duty" pertain to projectiles, not flying fists … or a thrown chair. Last season in Oakland another Player v. Fan melee occurred when Texas Rangers pitcher Frank Francisco hurled a folding chair into the grandstands behind the bullpen. He was aiming for a heckler, but instead the chair struck the man's wife, breaking her nose. An all-out fracas ensued. Attorneys were retained and the customary player suspensions were handed down.

Francisco was arrested for aggravated battery and eventually pleaded down to a misdemeanor.

The incident sparked an intellectual melee among lawyers, too. Some have opined that the Rangers, if necessary, can put on a vigorous defense claiming Francisco far exceeded the bounds of his employment responsibilities. By this line of reasoning, Francisco, already on probation with his career in ruins, is legally on his own.

But as far back as the Rudy Tomjanovich case, concepts such as vicarious liability and negligent supervision have been used to hold teams or leagues responsible for the actions of individual players. Beyond this, tort experts say injured spectators more often will look to recover damages from a venue or facility, claiming inadequate security or safety measures.

So the groundwork is in place for potentially catastrophic rulings. We'll see how these and similar cases shake out.

Meanwhile, we strongly recommend that teams and associations – whether professional or amateur – get a jump on this vital issue. Sit down with counsel and your insurance broker to develop a comprehensive program of Managed Risk: player education, contractual stipulations, appropriate coverages and so on.

As fans become more hostile, players are losing patience. And, more frequently, their tempers. It's a societal phenomenon likely to worsen. Gone are the days when Babe Ruth could climb into the bleachers to steal a fan's hot dog and get away with a chuckle and a $200 fine.