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Analysis: "Pay for pain" scandal could end up in courts

By Leigh Jones

NEW YORK (Reuters) - A scandal in which U.S. football players got rewarded for injuring opponents could have legal consequences, with prosecutors, players and even fans getting in on the judicial action.

By Sunday morning, four National Football League teams were linked to a "pay for pain" scandal that came to light in Friday's NFL announcement that New Orleans Saints defensive players were paid for "big hits" that took opponents out of play.

Over the weekend, reports of bounty programs at the Washington Redskins, Buffalo Bills and Tennessee Titans emerged in The Washington Post, the Buffalo News and The New York Times.

Saints defensive coordinator Gregg Williams, said by the NFL to have orchestrated the Saints scheme, was on the coaching staff at each of the four teams.

The NFL, which is trying to improve its image in the face of

lawsuits by former players over concussion injuries, is likely to mete out its own punishment against teams involved in making bounty payments, which could include suspensions, fines and restrictions on player recruitment.

But pieces of the scandal could well end up in the courts, say legal experts.

CRIMINAL CHARGES

Criminal charges of assault and battery against the teams, including Williams, are possible, said Ryan Rodenberg, an attorney and a sports management professor at Florida State University.

Rodenberg said that in 2000, Canadian prosecutors brought assault charges against Boston Bruins hockey player Marty McSorley for smashing Vancouver Canucks player Donald Brashear in the head with a hockey stick. As a result of the blow, Brashear struck his head on the ice, lost consciousness and suffered memory lapses. McSorley was sentenced to 18 months probation and banned from playing for that period.

Although the case did not involve bounty payments, it illustrates the willingness of prosecutors to get involved in situations involving intentional hits, Rodenberg said. Criminal charges related to the bounty scandal could arise from the various jurisdictions where injuries occurred.

Federal prosecutors could also bring charges, said Paul Callan, a former New York City prosecutor who is an attorney at New York's Callan, Koster, Brady & Brennan. If bounties were paid for games played outside a team's home state, then interstate telephone calls, computer use and travel could trigger federal charges, he said.

Possible charges could include wire fraud, conspiracy and racketeering, Callan said. Tax evasion charges were another possibility for the money that players earned for making big hits.

"Things could get interesting," Callan said.

EXTENT OF WRONGDOING

Both Rodenberg and Callan said the extent of the wrongdoing would determine if battery, conspiracy and racketeering charges would ensue. The more likely scenario at this point, they said, was for state and federal authorities to let the NFL deal with the problem.

Messages seeking comments for this story from the four NFL teams were not returned.

In a statement on Friday, Williams, now with the St. Louis Rams, confirmed that the system had been in place at the Saints.

"It was a terrible mistake and we knew it was wrong while we were doing it. Instead of getting caught up in it, I should have stopped it," he said.

"I take full responsibility for my role".

Bills CEO Russ Brandon denied knowledge of any such payment system while Williams was head coach, telling the Buffalo News, "We would not have tolerated that type of behavior."

On the civil side of the law, one possibility is a class action, Callan said.

Fans who had tickets to games involving bounty payments could assert they paid to watch games based solely on athletic ability, not on side bets for taking players out, Callan said. Damages likely would be limited to the price of the tickets, but considering the value of those tickets and the thousands of fans who attend, the damages could add up quickly, he said.

The claims could be similar to those made in a 2007 lawsuit seeking class-action status. In that case, a New York Jets season ticketholder sued the New England Patriots and coach Bill Belichick. The lawsuit claimed that the Patriots deceived fans by secretly videotaping the Jets coaches making hand signals. In 2010, a federal appeals court threw out the case, ruling that attending an "honest" game was not a viable claim.

The U.S. Supreme Court last year declined to hear the case.

A NEW PRECEDENT?

Ticketholders considering class actions against the Saints and other teams should note that the appeals court in 2010 wrote in its ruling that the case was unlike others it had considered, which could leave room for subsequent cases. The appeals court limited its ruling to the contractual relationship between team and ticketholder.

Other civil claims could include battery and conspiracy made by injured players. In their defense, the Saints and other teams likely would argue that even if bounty payments had occurred, the opposing players assumed the risk of injury and could not recover for them, said Kenneth Shropshire, an attorney at law firm Duane Morris in Philadelphia and professor at the Wharton School of the University of Pennsylvania. That defense could be persuasive to a court, he said.

"This is a violent sport that they volunteer to participate in. That's just the mentality of the game," he said.

Linda Greene, professor at University of Wisconsin Law School, said that the assumption-of-the-risk defense could fail if the bounty payments had so changed the terms of play that the hits were beyond what was normal.

Proving damages under any battery claims would take a meticulous analysis of the particular hits in question to determine if they were beyond the usual bounds of play, Greene said.

Any claims or charges would be subject to statutes of limitations, legal experts said. Determining which jurisdictions' laws applied and when the alleged conduct began and ended likely would be major points of contention.

(Editing by Howard Goller)

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