by: Mickey Ingles

Last August 6, United Football League’s Meralco Sparks midfielder, UP men’s football coach, and all-around nice guy Anto Gonzales got stomped on (yes, you read that right, stomped on) by Forza forward, Lionel Mekong. (You can watch the incident here at the 2:38 mark). Anto ended up with stitches on his face. Classy guy that he is, Anto took the high road in dealing with the incident, even offering a reconciliatory message on his Facebook page.

Anyone who’s played sports, whether in front of paid spectators or simply in pick-up games in the neighborhood court, can attest that there are some acts that are simply “not part of the game.” These may include acts that are violent or reckless. A classic example is the elbow to the head, which—taken away from the context of MMA—has no sporting value in basketball, soccer, or even rugby. (Here’s another classic from Rudy “the Destroyer” Distrito.) Sadly, these can lead to injury, and an afternoon that should’ve been spent in healthy competition turns into an evening spent in the hospital tending to broken bones or nursing cuts.

Where does the law stand in these cases? Can an injured athlete sue for injuries sustained in sports competitions?

The short answer is yes. Injured athletes can sue based on Article 2176 of the Civil Code. The provision states that “whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.” This is called a quasi-delict or a tort. I personally like calling it a tort, because it rhymes well with sport(s). Just to be clear, Article 2176 allows the injured player to sue for money, not jailtime for the offending player (you go with the Revised Penal Code for that).

The biggest challenge for the injured athlete is getting over the tort defense of assumption of risk. The defense basically states that anyone who knows the risks in a certain activity and yet still voluntarily pursues such activity assumes any injury arising from the activity. Whew, that was a mouthful and I doubt Daveed Diggs could even rap that. So in simpler terms, I like to think of the defense as the “ginusto mo yan” defense.

Naglaro ka ng soccer, kung madapa ka at mainjure ka, ginusto mo yan.

 5’2” ka lang tapos sumabak ka sa mga higante para sa rebound, kung maapakan ka, ginusto mo yan.

 Nagmahal ka ng taong may ayaw sa iyo, kung masaktan ka, ginusto mo yan.

Sports is full of these risks. Risk of injury can even be considered inherent in sports. We twist ankles when we land awkwardly going for a rebound. We get kicked in the face going for a 50-50 header (happened to me twice!). But, hey, these things happen. Does the defense of assumption of risk mean that no one can recover from injuries sustained in sports?

No, of course not. The reason lies in foreseeability. The assumption of risk defense only covers foreseeable risks; hence, we can’t sue the owner of the size 15 shoes that we stepped on when playing basketball. That’s just basketball.

There are however unforeseeable risks, risks that are “too out there” to even consider.[1] Getting stomped on the face while playing soccer is not a foreseeable risk. I’ve been playing soccer for more than 25 years, and never did I enter the pitch and thought, “oh, my babyface might get stepped on today.” I’m sure babyfaced Anto didn’t think of that as well.

With this in mind, the US courts have developed a standard in dealing with sports torts. In my JD thesis and article with the Marquette Sports Law Review, I advocate the use and adoption of this standard in the Philippines. No Supreme Court decision has dealt with this yet, and I’m not aware of any lower court decision either.

The standard is simple: “a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player.”[2]

Hence, there are two ways that an injured player can sue and get over the hump of the assumption of risk defense.

The first is predicating his case through an intentional tort theory. This is fairly simple. If an opponent runs up to you during a softball game and smacks you on the head with a bat for no reason, intent is easy to see. But in other cases, it’s hard to prove, especially in the heat of competition. Remember Draymond Green’s leg that seems to know where his opponent’s balls were? It’s hard to know what’s on Draymond’s mind and whether he intended to bring the WWE into the NBA. Proving it is way harder. That’s where the second theory comes in.

By applying the second theory, we do away with the problem of intent. Under the second theory, any reckless act that disregards a safety rule can be a basis for a tort claim.

The second theory is twofold. First, the act must be reckless. A reckless act is done voluntarily but without malice and materially damages another because of an inexcusable lack of precaution, depending on the circumstances.[3] “Second motions” in sports are arguably reckless acts. Draymond flailing his leg after the play is over may not be intentional or done with malice, but it can be seen as reckless.

Second, it must have also disregarded a safety rule of the sport. These rules will differ per sport. Hence, a player who gets injured by a blow to the head during a football game is substantially different from a person who gets knocked unconscious by a closed fist during a boxing match. Low blows, however, seem to cut across all sports as a violation of a safety rule—except, of course, during the early days of the UFC where it was good strategy to go for the jewels if you’re being choked.

The wisdom of the second theory is that it’s not too stringent as to make it impossible for an injured athlete to recover damages and it’s not too lax either as to quell the competitive spirit in sports. It’s a good middle ground that protects both the athlete and the game.

With that said, the stomp on Anto’s head was clearly a reckless disregard of a safety rule. Anto was on the ground. Mekong could’ve simply stepped over him. Instead, he stepped on his head. It was reckless because it was voluntarily made and exhibited an inexcusable lack of precaution which resulted into material damage to Anto’s face. And, it disregarded a safety rule in soccer, i.e. don’t go kicking people in the face.

Of course, it’s up to the injured player if he indeed wants to pursue the case in court. But if he does, at least he’ll have a good theory to work with.

In sports parlance, the ball’s in his court. Just be careful of Draymond.[4]

Mickey Ingles is the editor-in-chief of Batas Sportiva. He knows the anguish of being kicked in the groin.

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[1] See Bourque v. Duplechin, 331 So. 2d 40 (La. Ct. App. 3d Cir. 1976).

[2] Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975)

[3] An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code], Act No. 3815, art. 365 (1932).

[4] See what I did there?