Are You Ready for Some Football? Consent, Intentional Torts, and the NFL Kickoff

Tonight marks the start of a new NFL season, with the Philadelphia Eagles hosting the Dallas Cowboys. Millions of fans will tune in for the excitement, the rivalries, and yes—the hard hits. But as the season kicks off, it’s worth asking: When players step onto the field, what exactly do they consent to? And at what point does a hard hit cross the line from part of the game to an actionable intentional tort?

To kick off this season—and our discussion—let’s break down the play-by-play in case brief style: Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).

Facts

Dale Hackbart, a defensive back for the Denver Broncos, was injured during a 1973 game against the Cincinnati Bengals. After an interception, Hackbart dropped to one knee, out of the play. Charles “Booby” Clark, a Bengals running back, frustrated by the turnover, struck Hackbart from behind—deliberately hitting him on the back of the head and neck.

The blow caused serious injury, ending Hackbart’s career. Hackbart later filed suit against Clark and the Bengals, alleging that the intentional strike was a tortious act outside the scope of consent inherent in professional football.

The trial court dismissed the case, reasoning that football is a violent sport—“a species of warfare”—and that participants effectively consent to such conduct by stepping onto the field.

Issue

Does participation in professional football constitute consent to all violent conduct, including intentional strikes outside the rules and customs of the game?

Holding

No. The Tenth Circuit Court of Appeals reversed the trial court, holding that consent to play football doesn't equate to consent to all forms of violence. Players only consent to contact within the rules and customs of the sport.

Reasoning

The court acknowledged that football is inherently violent, and players consent to a high level of physical contact. But it drew a critical line: conduct that exceeds the game’s accepted boundaries—such as an intentional strike to the head after the play—falls outside the scope of consent.

Rule

Consent in intentional torts is limited to the scope of the rules, norms, and expectations of the activity. Participation in a violent sport doesn't eliminate legal protections against conduct that exceeds those limits.

Takeaway

As tonight’s NFL season kicks off, fans will see plenty of hard hits. Those hits are part of what the players consent to when they step onto the field. But if an action falls outside the rules—an after-the-whistle blow, an intentional strike to an unprotected player—it may not be shielded by consent.

Hackbart is a reminder that legal doctrines apply even in the seemingly lawless world of professional football. Participation in a violent game doesn't erase the protections the law provides against intentional or reckless harm.