In the News, On the Bar Exam: The WNBA Just Gave Every 1L a Torts Review

If you've followed sports headlines this week, you've probably seen the discussion surrounding Alyssa Thomas' foul on Caitlin Clark and the WNBA's subsequent one-game suspension.

This post isn't about whether the officials got the call right, whether the suspension was appropriate, or who was at fault. I'll leave those debates to sports analysts.

Instead, the play provides a timely opportunity to revisit one of the classic cases many first-year law students encounter in Torts: Hackbart v. Cincinnati Bengals, Inc, 601 F.2d 516 (10th Cir. 1979). The case illustrates an important legal principle that frequently appears on law school exams and occasionally on the bar exam: Consent and when a defendant exceeds the scope of that consent.

https://youtube.com/shorts/eKJPdaRSpgg?si=---hEvSzfZb0EsPw

Athletes consent to a certain amount of physical contact simply by participating in a sport. But that consent has limits. Understanding where those limits lie is exactly what made Hackbart an important case, and why it remains worth studying today.

The General Rule: Athletes Impliedly Consent to Ordinary Contact

One of the defenses to an intentional tort is consent. Consent may be express (e.g., signing a waiver) or implied from a person's conduct.

Participation in an athletic competition is one of the clearest examples of implied consent.

By choosing to participate in a sport, athletes consent to the physical contact and risks that are ordinarily associated with that sport. A football player consents to being tackled. A hockey player consents to legal body checks. A basketball player consents to incidental contact, hard screens, and even hard fouls that occur during the normal course of play.

If every collision on a basketball court or football field resulted in a lawsuit, organized sports could hardly function.

But consent isn't unlimited.

Consent Has Boundaries

The key legal question isn't whether the plaintiff consented to any contact. Instead, the question is whether the plaintiff consented to this particular type of contact.

Consent generally extends only to conduct that falls within the ordinary rules, customs, and reasonably anticipated risks of the sport.

A participant ordinarily doesn't consent to conduct that:

🚫 Is completely outside the accepted rules or customs of the game;

🚫 Is intentionally designed to inflict injury rather than compete; or

🚫 Is so reckless or violent that it bears no reasonable relationship to the athletic competition.

When a defendant exceeds the scope of the plaintiff's consent, the consent defense may no longer apply.

That principle brings us to Hackbart.

The facts are straightforward. During an NFL game, after a play had essentially ended, Cincinnati Bengals running back Charles "Booby" Clark intentionally struck Denver Broncos player Dale Hackbart in the back of the head and neck with his forearm. Hackbart suffered serious injuries and sued for battery.

The defendant argued that football is an inherently violent sport and that players consent to physical contact by choosing to participate.

That argument sounds persuasive ... until you focus on the limits of consent.

The Tenth Circuit recognized that football is unquestionably a contact sport and that players assume many risks associated with ordinary play. But the court also recognized that players do not consent to every intentional blow simply because they put on a helmet.

Instead, they consent only to contacts that are reasonably related to the game itself.

If a jury concluded that Clark's conduct was intentionally outside the accepted rules and customs of football, then Hackbart's consent wouldn't bar recovery.

Therefore, the court allowed the case to proceed.

Why Law Professors and Examiners Love This Case

Hackbart appears in many first-year Torts courses because it illustrates a broader principle that extends far beyond sports.

Consent is almost never an all-or-nothing concept.

A plaintiff may consent to one form of contact while refusing—or never agreeing to—a different one.

Consider these examples:

🚫 A patient consents to surgery on the right knee but not the left.

🚫 A homeowner invites a guest into the living room but not into a locked bedroom.

🚫 A basketball player consents to physical contact during the course of play but not to an intentional strike, such as a fist to the neck, that goes beyond what is reasonably expected in the game.

In each situation, the defendant's liability depends on whether the defendant stayed within the scope of the plaintiff's consent.

So, whenever you encounter a sports injury fact pattern, don't stop your analysis after identifying consent.

Ask yourself these three questions:

1️⃣ Did the plaintiff consent by participating in the sport?

2️⃣ What conduct did that consent reasonably encompass?

3️⃣ Did the defendant exceed the scope of that consent?

Those questions often determine whether consent is a complete defense (or no defense at all).