Who Dat Say They Gon’ Pay Dem Saints?: Should Illegal Contracts Be Enforceable Within the NFL?

Photo by: James Clayton

When it comes to sports, there is the good, the bad, and the ugly.   I would classify the good as somewhere around the Boston Celtics and the bad would definitely have to include the New Orleans Saints.  Please allow me to preface this article with full disclosure:  I absolutely abhor the Saints.  I make it a point to cheer for any team that is playing them.  Then, to add fuel to my hatred, “bountygate” occurs.   Over the course of the past few seasons, several players and coaches, mostly aligned with the New Orleans Saints, offered and were offered money to inflict serious injury on franchise players such as Brett Favre, former quarterback for the Minnesota Vikings.  Many people find the implicated players’ and coaches’ actions utterly reprehensible.  On the other hand, there are many people, including players like Reggie Bush, who feel that this is just a part of the game.  Furthermore, even a portion of those people who find the actions deplorable derive their shock from the fact that marquee players were targeted, not that the payment of money was involved.  If members of special teams had been targeted, would there even be a “bountygate?”  With this level of dismissiveness toward these backdoor agreements between players and coaches to injure members of the National Football League (NFL), should the particular nature of the NFL make the illegal contracts acceptable therein?

While the term “illegal contract” may spark the onset of premature wrinkles for any first-year law student, a large segment of the nation’s populace may be utterly oblivious to the concept.  Illegal contracts arise when either the object of the contract or its consideration is illegal.  “If a contract is so connected with the illegal or immoral purpose or transaction as to be inseparable from it, a court will not enforce it.”  Lamm v. Crumpler, 242 N.C. 438 (1955).   First-year law students learn in Contracts I or Torts I that courts of law will not enforce illegal contracts.  After all, it is against public policy to allow people to benefit from their illegal actions.  I, specifically, remember a certain professor saying “if it’s illegal, you can’t pay someone to do it.”

“Bountygate” is such a big deal because the NFL has a long history of players being concussed.  The recent death of Junior Seau, former linebacker for the San Diego Chargers and my first favorite football player, is an all too vivid reminder of this fact.  At this very moment, several former players have initiated a lawsuit against the NFL, claiming that the League withheld the risks and dangers of concussions throughout its history.  One of the reasons that NFL Commissioner Roger Goodell decided to take action is in order to drive home the fact that the NFL does, in fact, take injuries to players seriously.  In fact, fines and penalties for excessive hits are currently at an all-time high.  Even with the threat of concussed players looming over his head, “bountygate” ringleader and Saints linebacker, Jonathan Vilma’s, punishment has been decried as too severe or a case of Commissioner Goodell overreaching again.

So where does “bountygate” fit in with illegal contracts?  Football is, undoubtedly, a contact sport.  These players get creamed on the field every week, some to the point of suffering multiple concussions and other injuries.  However, this contact is not the ultimate object of the game.  Players expect to be hit.  Some expect to be hurt.  But one would be lucky to get a player to admit that he expects to be intentionally “taken out” of the game.

Quite plainly, “bountygate” is a hot topic because players were offered money to perform batteries.  Battery is the intentional infliction of harmful or offensive contact.  Victims can even sue through the civil courts or seek punishment of the offender through the criminal courts.  As the law now stands, should any of the accused players boldly fess up to the existence of, and more importantly, his participation in these contracts, he would not be allowed to seek payment for performance or absolve himself from liability in the courts of law.  Clayton Morgan, Associate Corporate Counsel at Progress Energy, seems to agree.  “Due to the subject matter of these “bountygate” contracts being designed to achieve an illegal purpose, I do not see how such intra-organizational contracts can be enforced by the courts.  That is, the specific intent behind the contract (i.e., to inflict an excessive amount of bodily harm to an opposing player that is above and beyond the expected amount of contact normally experienced in such play; all solely for the express purpose of eliminating that player’s participation in the game), surely rises to a level of conduct so egregious that it also violates public policy and should therefore pass neither a legal or (certainly) a moral litmus test.”

But has the public sentiment shifted to make these illegal contracts acceptable?  Americans are becoming increasingly desensitized to violence, and what was once considered morally reprehensible behavior is now the norm.  With the changing times, maybe it is time for the courts to take a more particularized look at illegal contracts, especially those of the intra-organizational nature.  Organizations are tiny nations within our world and some of the rules that apply to the world-at-large would inhibit an organization’s productivity.  The workings of organizations are undoubtedly different from the day-to-day interactions between individuals.  When the illegality involved in the contract is to be expected or will actually benefit the organization without creating detriment to those who are not a part of the organization, is it necessary for the courts to apply common law principles to refuse to enforce the contract?  For instance, if citizens are not concerned with “bounties” within a contact sport, should the courts be?

Although I understand why illegal contracts should be prohibited among citizens, perhaps the nature of the NFL should make these acceptable therein to a certain extent.   Contracts of this sort illegal because they provide an incentive to outside the law.   However, these batteries only derive their illegality because they are specifically prohibited within the NFL.  As a point of comparison, the highest paid athlete in the United States, Floyd Mayweather, gets paid to batter men mercilessly in every sense of the word.  No one would dare suggest that Floyd or the fight promoters not be paid because his contracts require him to get into the boxing ring and intentionally beat men to a pulp.

In the case of the NFL, the objects and parties of the contracts were within the League, and the illegality was contained.   Although, the risks and consequences could possibly last for years and impact persons not within the league, thus is the nature of all contracts.  If the intentional aspect of the contracts is the issue, who can honestly say that players do not harbor this intent without having a sideline contract?

While I, in no way, condone the actions involved in the “bountygate” scandal, I have lost a little faith in clean, wholesome competitiveness.  However, if the spectators of the sport are in agreement with the players’ and coaches’ actions, non-enforcement of these contracts may not serve a useful purpose.


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About Dorothy Gooding, Former Staff Writer (2 Articles)
Dorothy graduated from Campbell Law School in 2013, and from the University of North Carolina at Chapel Hill in 2007 with a Bachelor of Arts in Sociology. In addition to the Campbell Law Observer, Dorothy served as Chief Submissions Editor for the Campbell Law Review and as Co-Director for the Campbell Law Peer Mentors. Dorothy’s legal experience includes internships with Progress Energy, Clawson & Staubes, LLC, The Chambers of the Honorable Justice Paul M. Newby, and the U.S. Attorney’s Office for the Eastern District of North Carolina. A small-town girl at heart, Dorothy spends many weekends in her hometown of Kinston, NC.
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