The Hunger Games and Other Dangerous Sports

The Hunger Games is a trilogy of books, the first of which is also called The Hunger Games and which has been adapted into a film that debuts next week.  It looks like it’s going to be both a good movie and feature more accurate archery than The Avengers, but I digress. The books are set in a future dystopian society in which teenagers, selected more or less at random, are forced to compete to the death in the titular Hunger Games.

Since the book takes place in a fundamentally different world than the real one, we can’t really examine the Games on their own terms. We can say they would certainly be illegal in the real world (no surprises there), but it may be interesting to examine why, exactly. After that we’ll ponder just how dangerous a real-world version of the Games could be without obviously running afoul of the law.

Some very minor spoilers follow (nothing you wouldn’t know from the trailer, I think).

I. The Set-Up

Most entrants to the Hunger Games are selected randomly, but it is possible to volunteer.  That’s how the protagonist enters the Games, for example.  The Games themselves take place in a large uninhabited area in which the competitors (called tributes) are given weapons and supplies and expected to kill each other.  The people running the Games (the Gamemakers) have various carrot and stick mechanisms they use to goad the tributes into competing, and the more or less inevitable result is that a single victor emerges with everyone else dead.  If a group of tributes refused to fight then the Gamemakers would likely kill all of them or all but one.

II. So Why Exactly is This Illegal?

Intuitively this seems like it should be illegal, and it would be in the real world.  For starters, the Gamemakers’ actions are pretty clearly illegal: the involuntary competitors are essentially kidnapped and falsely imprisoned, then threatened with death if they don’t compete.

The voluntary competitors are pretty much just as bad, as they’re agreeing with the Gamemakers to try to kill other people, many of whom are there involuntarily.  That’s conspiracy and either attempted or actual premeditated murder.

(Note: By “voluntary competitors” I mean both tributes like the protagonist who make a direct choice to compete as well as those tributes who enter their names into the tribute selection lottery multiple times in order to earn extra food for their families.  Arguably both are voluntarily entering the Games, whereas the tributes whose names are entered the minimum required number of times could be said to be involuntary competitors.)

The involuntary competitors are only slightly better off.  They aren’t guilty of conspiracy because they didn’t agree to compete, but they may still be guilty of attempted murder or murder because they can’t claim the defenses of duress or necessity, since neither is a defense to murder in most jurisdictions.  They could avoid liability by only fighting in self-defense, however, but that would usually mean waiting until other tributes attacked them first, which isn’t typically a winning strategy.

Now wait a minute, you might say, what about consent?  Doesn’t it matter that the voluntary competitors consented to compete in the games?  The answer is no, not really, even if the minor competitors’ parents also consented.  While a person can consent to an assault or battery (think of boxing, for example), one cannot consent to one’s own serious injury or death. See, e.g., State v. Mackrill, 345 Mont. 469, 476 (2008) (“it is against public policy to permit a person purposely or knowingly to cause serious bodily injury to another, even though that conduct and the resulting harm were consented to”).

Well, what about assumption of the risk?  Aren’t the voluntary competitors assuming the risk that they will get hurt?  The problem here is that assumption of the risk does not extend to intentional wrongdoing, only negligence and recklessness.  Restatement (Second) of Torts § 496A (“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”) (emphasis added).

Similarly, the exception made for the harm inherent in sporting events only applies to lawful sports, whereas the Games are predicated on kidnapping, conspiracy, and threats.  See, e.g, Colo Rev Stats, § 18-1-505(2) (“When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if … the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.”).

That pretty much sums up why the Games would be both criminal and tortious, but what are the real-world limits for something like this?

III. So How Close Can We Get?

Clearly we’ll have to begin with consent, so we can toss out all of the involuntary competitors.  Ideally we’d get informed written consent from both the competitors and their parents, together with explicit waivers of liability for the Gamemakers and other competitors.  Of course, to be meaningful the consent must be ongoing, which means the competitors must be free to leave the game at any time.

An important part of the informed consent process is to ensure that the competitors and their parents are aware of the reasonably foreseeable hazards of the Games.  This helps bring the Games within the exception for lawful sports: “When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: … (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport ….” Model Penal Code § 2.11(2) (emphasis added).

The Games themselves would have to be watered down from a fight to the death to something more like Mixed Martial Arts.  While certainly a vigorous athletic contest, serious injuries are not inherent in MMA, and so consent and assumption of the risk will go a lot farther in eliminating both criminal and tort liability.

That doesn’t mean that everyone is necessarily off the hook.  Competitors and Gamemakers could still be liable for injuries that result from, for example, breaking the rules of the game that are concerned with safety.  See, e.g., Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975).  With children involved the Games would likely need to either take advantage of sovereign immunity or have a hefty insurance contract.

IV. Conclusion

So after all that, what are we left with?  Basically a kind of free-form outdoor MMA, which the competitors can quit at any time.  Not quite as exciting as a forced fight to the death in the wilderness, we’ll admit.  What can we say?  Lawyers spoil all the fun.

43 Responses to The Hunger Games and Other Dangerous Sports

  1. Perhaps a little more analysis is required. For example, suppose the organizers of the games are located here, but the games themselves are held outside of U.S. jurisdiction. (for a real-world example, the Survivor game is always held overseas… though not always outside U.S. jurisdiction.)

    For that matter, as I understand it the modern civil law system used in many other parts of the world is descended from the Roman system, and the Romans obviously permitted deadly competitions of martial skill for the entertainment of others.

    Finally, suppose a state really, REALLY wanted to host such games (probably Nevada… they were OK with gambling when most states were not, they are OK with prostitution (in some counties) when the other states are not… would a real-life Hunger Games style event draw sufficient tourist dollars to make it worthwhile to the state to write enough statutory exceptions into the state code to host the games? If so, would there be any recourse in the federal law?

    • It’s more that many states (states as in sovereign states) use laws that have some origins in Roman law. Killing games clearly weren’t legal in France when the Napoleonic Code was written up and a good deal of the world uses some form of it.

      As for jurisdiction, if you plan to kill people in the U.S and abduct people in the U.S. a little thing like having the games in another nation probably isn’t going to offer much protection. Besides, every state has laws against murder and the like* so no matter what country you’re in you’re probably going to be guilty anyway.

      As for states (states as in the separate parts of the United States) I assume you mean a much toned down version of the games that is effectively Mixed Martial Arts. If you are then it’s probably legal, albeit controversial and you’d better have ambulances and police standing by. If you mean actual death matches, any changes to state law to make that legal would mean an army of federal agents descending on the state and deciding whether they were going to get the people involved sentenced to just one century or four.

      *Of course in some this is not well enforced but the point is still that you’re breaking the law regardless of your location.

      • James Pollock

        “As for states (states as in the separate parts of the United States) I assume you mean a much toned down version of the games that is effectively Mixed Martial Arts.”

        Actually, Mixed Martial Arts matches are not legal in all 50 states. Every state regulates boxing, wrestling, and other combat sports differently… some with more regulations to protect the health and safety of the participants, some less. If a state chose to legalize mutual combat with a substantial possibility of death and disability (rather than the allegedly limited chances of, say, Boxing, MMA, football, or even competitive cheerleading, all of which have produced death and disability in participants, or auto racing, which has produced death and disability in spectators as well) what would stop them? I imagine that the Congress could produce regulation under the commerce clause, but is there anything NOW that would prevent a state from legalizing a souped up MMA that included weapons? (Assuming, of course, that participants are participating of their own free will… kidnapping gets the FBI involved already.)

      • I imagine that the Congress could produce regulation under the commerce clause, but is there anything NOW that would prevent a state from legalizing a souped up MMA that included weapons? (Assuming, of course, that participants are participating of their own free will… kidnapping gets the FBI involved already.)

        Apparently there are (largely unenforced) federal boxing laws, so there may be some obscure preexisting law that the federal government could apply to something like the Games.

        Of course, just because the host state has legalized it doesn’t mean that the competitors are off the hook. For example, suppose Nevada legalizes a deadly-force version of the Games. Now suppose a competitor from, say, California decides to enter the Games. Arguably, he has committed attempted murder in California at that point: he has formed the intent to kill the other competitors and taken a substantial step toward it, even if that step simply consists of beginning the trip towards Nevada. He could thus be charged with attempted murder in California. And if he actually participated in the Games and won then he could be charged with actual murder upon his return.

      • James Pollock

        But intent to compete in the games doesn’t necessarily imply intent to use deadly force in any manner. Perhaps he intends as a strategy to evade the competition and allow them to eliminate the opposition, then step in and use nonlethal force against the survivors to force them to submit. (I’m not familiar with the book… does it REQUIRE all of the competitors to be killed? The Roman gladiatorial games did not.) Thus, it should be VERY difficult to prove intent to kill anyone was present before the games actually begin. Consider… many players of the Survivor game show have said that they did not intend to lie or deceive when the show began… but the closer they get to winning, the higher the temptation. Even though most players DO end up lying and deceiving in playing the game, it’s probably not possible to prove that they intended to do so all along.

        If your reasoning is sound, it would be illegal for me to leave my home state to enter another for the purposes of hunting an animal that is protected in my home state… or for MMA competitors to leave their home states which forbid or limit MMA matches to engage in competitions which are less regulated. (The difference in each case is that the offense is more trivial, and therefore less likely to appeal to the prosecutors who have enough work to do already.)

      • (I’m not familiar with the book… does it REQUIRE all of the competitors to be killed? The Roman gladiatorial games did not.)

        Generally speaking it does. Occasionally there are exceptions (e.g. two joint winners) but mostly it’s a fight to the death.

        If your reasoning is sound, it would be illegal for me to leave my home state to enter another for the purposes of hunting an animal that is protected in my home state

        No, because the statutes protecting animals are generally explicitly limited to the state in question. See, e.g., Cal. Fish & Game Code § 2080 (“No person shall … take … within this state, any species … that the commission determines to be an endangered species or a threatened species, or attempt any of those acts …”).

        By contrast, murder is broadly defined as “the unlawful killing of a human being … with malice aforethought” without regard to where the killing occurs. Cal. Penal Code § 187(a). California’s penal code explicitly extends its jurisdiction to “All persons who commit, in whole or in part, any crime within this state.” Cal. Penal Code § 27(a)(1). “The words “any crime,” as used in subdivision 1 of section 27, mean any offense which, if committed wholly within the state of California, would constitute a crime against the laws of this state.” People v. Chapman, 55 Cal.App. 192, 197 (1921).

        As explained in California Jurisprudence, this means that “Where an essential part of the offensive transaction does take place in this state, the fact that it is not a crime under the laws of the state where it is consummated does not deprive this state of the power to exercise jurisdiction over the whole transaction and to apply to it the criminal law of this state.”

        Notably, not all state penal codes have such extraterritorial reach. See, e.g., State v. Karsten, 194 Neb. 227 (1975) (holding that—at least in 1975—Nebraska’s conspiracy statute did not apply to a conspiracy, formed in Nebraska, to commit assault in Colorado).

      • TimothyAWiseman

        @James Pollock For murder, intent is required, but it can be a bit broader than you seem to imply. For one, something like intent to maim or do serious bodily harm will suffice quite nicely for murder if it results in death. If the “felony murder rule” is in play (I believe it is in all states, though the exact details definitely vary), then intent to commit a sufficient felony, even without any intent to bodily harm anyone, will be sufficient to satisfy the intent criterion for murder if someone dies as a result.

        Of course, your specific intent may affect the type of murder you are charged with, but it remains murder.

    • IANAL, but I think your hypothetical about holding games outside US jurisdiction is interesting, and we have something that parallels it in real life: child sex tourism.

      Since things like pedophilia are illegal in the US (and those laws are enforced), some people will go to contries where it is either legal, or the authorities look the other way. In response, Congress passed a law making it a crime in the US for citizens to participate in sex tourism overseas, even if it’s completely legal in the destination country. (The PROTECT Act)

      I don’t know if there’s a similar law on the books for murder. I think that there’s a federal law about joining terrorist groups overseas, but I doubt that’d fit for this particular scenario. However, I doubt you’d get more than one iteration of overseas Games before Congress would pass a law forbidding US Citizens to participate.

      As far as a US state allowing this: since the federal government has held that it’s “interstate commerce” to grow food on your own land for your own use, I am 100% sure that the feds will figure out something that allows them to step in if a state permitted Games. Now, if you were kidnapping the competitors, I think existing law on kidnapping and violating civil rights would do the heavy lifting. However, I don’t know how they’d do it for voluntary participation.

      • James Pollock

        I’m not a lawyer either, but there’s another parallel on the other side…tourists who go to Europe, particularly Amsterdam, pursuing the lax legal environment surrounding drug and prostitution laws. As far as I know, this doesn’t create criminal liability unless someone tries to bring home a “souvenir” of the trip.

    • I stuck with the US because that’s what I know and because the books are set in a future version of what was once the United States. I’m not familiar enough with civil law to say whether a fundamentally different result could be achieved under such a system, but I suspect not.

      But let us suppose some country decides to be the Las Vegas of morally questionable sports. The US could still effectively criminalize participation in the Games by US citizens by levying economic sanctions, banning travel to that country, seizing any money that came from the Games, etc.

      As far as a US state trying to allow it: the Commerce Clause comes to the rescue here. While the federal government might have trouble reaching the murders and whatnot committed by competitors in the Games, it would have not trouble banning the Games themselves because they are an economic activity that would no doubt affect or make use of interstate commerce. The federal government can reach major league baseball, for example. 15 U.S.C. § 26b.

    • Melanie Koleini

      I’m enjoying the discussion but this post glosses over several important plot points in the book.

      First, in the story, the federal government is conducting the Hunger Games, not a private entity. Hence, they have sovereign immunity. In my opinion, they aren’t kidnapping kids so much as drafting them. (Child soldiers are illegal too, of course.)

      Second, at least at the start of the story, the games are to the death with only one survivor.

      Third, one of the main purposes of the Games is to keep the various factions of society resentful of each other so they don’t unity against the federal government. (I don’t think this is actually stated in the book but the implications are pretty clear.)

      For the people of the capital the Hunger Games are entertainment. For everyone else, they have to watch whether they want to or not.

      • Sovereign immunity would be a defense for the state entity running the Games, but it wouldn’t necessarily be a defense for the competitors unless the government extended immunity to them. For example, a government might be immune to liability for accidents in a state-owned park, but that doesn’t make people in the park immune to liability for crimes or torts committed in the park, even if they have a formal agreement with the state to be in the park (e.g. if they paid to rent a campground).

        And I did mention that sovereign immunity would be one way for a watered-down Games to avoid liability (though again it wouldn’t necessarily extend to the competitors).

      • Would the government really have to explicitly extend their immunity to the competitors? Assuming that those running the game do have sovereign immunity (which sounds like a pretty obvious conclusion given their being a tyrannical government) isn’t the fact that the state is commanding them to participate in the Games (even voluntary competitors cannot withdraw consent) enough to extend that same immunity to the competitors?

      • Would the government really have to explicitly extend their immunity to the competitors?

        By “the government” I mean a state or national government that wanted to create a real-world version of the Games, not the version in the books and movie. The fictional version is legal by the laws of the nation of Panem, which is one of the reasons we don’t talk much about fictional worlds that are significantly different from the real one: usually the interesting stuff is just defined to be legal by the author.

    • “But intent to compete in the games doesn’t necessarily imply intent to use deadly force in any manner. Perhaps he intends as a strategy to evade the competition and allow them to eliminate the opposition, then step in and use nonlethal force against the survivors to force them to submit.”

      Considering that the rules require death it’s a moot point. Anyway, even if the rules didn’t definitely require death that person would clearly be choosing to participate in an event where it is well known that a large number of people will die at the hands of other people. I don’t think many courts would accept the ‘I really planned to win nonviolently’ argument.

      • James Pollock

        “Considering that the rules require death it’s a moot point.”

        I was hypothesizing a present day gladiator-style game where the fight continues until one side is clearly victorious… of which death of the opponent would be but one possible demonstration. As I noted, I haven’t read the book so I imagined instead a version of the Roman gladiatorial games.
        It would still be possible, I think, in some cases, to show that the requisite intent to kill had not been formed in the gladiator’s home state before they travelled to wherever the games were held. (By which I mean that this element would have to be proved affirmatively rather than being implied simply from participation… not that it couldn’t be proved at all.)
        As for the nonviolent win scenario, examine tactics for popular multi-player “deathmatch” first-person shooter games. The goal is to be the last one standing… so sometimes it is possible to win such a game by hiding while everyone else battles it out, then sniping the last one or the last few survivors. IF (and it’s a big if) the strategy were to establish a strong redoubt and stay there until one or more of the other competitors finds it and enters to try to kill the defendant, the affirmative defense of self-defense might apply… making the defendant neither guilty of murder nor of conspiracy to murder.

  2. “So after all that, what are we left with? Basically a kind of free-form outdoor MMA, which the competitors can quit at any time.”

    Don’t give the reality TV producers any ideas….

  3. It could be changed to a paintball or laser tag esq sport, as well. I assume “assumption of risk” would provide clearance to do sporting events in dangerous, un-managed wilderness such that swinging across a chasm on a rope and falling to break your leg on some naturally-occurring branches would be “okay,” but swinging across a chasm and falling to break your leg on a deliberately-placed bear trap would not.

    But leaving it to “natural” hazards and providing the contestants with tools to make non-seriously-injurious traps (snares, nets, etc) could be within the bounds of a sport, I think, and rules for being hit by laser tag or paintballs to get “killed” (really just eliminated) would be fine. You could even allow MMA to help encourage people to quit, which counts as being “killed.” Probably the same thing that triggers “death” by laser tag could be manually activated as part of physical sparring, if one contestant is too stubborn to voluntarily quit no matter how much he’s beaten.

    You could do a lot with it if you got enough clearances from the State; the big question I have is just how deliberately injurious can hazards manually placed by the GameMakers or contestants (meant to trap each other) be and still be “okay?” Obviously, lethal traps are right out. How dangerous can they be before their lethality is only “reckless and negligent?” I mean, it’s possible somebody could die in Survivor doing one of the physical challenges.

    Could you justify, if not a full-fledged Bear Trap, a jaw-trap of the same sort that might pierce skin or break a limb, but is highly unlikely to sever it permanently? What about a pit trap? Normally, it’d break a limb at worst, but is it merely “reckless and negligent” if it causes somebody to break their neck and die, or is that out-and-out attempted murder? How about spear-launching traps, which are designed to hit lower limbs, but which could hit somebody who was, for some reason, laying down (or foolishly looking into the hole) and kill them? The INTENT wasn’t death, but does this move beyond “reckless and negligent” and thus out of bounds of what a waiver can indemnify the GameMakers against?

    • Just to clarify: assumption of the risk is a defense in tort, whereas consent is a defense in both tort and criminal law. So when we talk about assumption of the risk we’re only talking about potential tort liability, not potential criminal liability.

      Let’s tease apart some concepts here. Consent applies to, among other things, intentional conduct like battery. Assumption of the risk applies to injuries resulting from negligence or recklessness.

      Laying a trap is an intentional act: the trap-layer intends for an injury to result. However, the victim has presumably consented to playing a game in which traps may be set, and so the victim cannot complain of a battery, unless the trap was intended to cause serious injury or death. Note that “intent” in tort can mean both conscious purpose and “knowledge to a substantial certainty.” If someone digs a 20 foot deep pit trap, they have a knowledge to a substantial certainty that the victim will receive a serious injury, and that’s enough for intent.

      However, suppose the trap was set negligently so that it unintentionally causes a serious injury. Let us further presume that all the players know that traps are an inherent part of the sport and explicitly assume the risk that traps may be set negligently or even recklessly. Now assumption of the risk comes into play, and the victim can’t complain of the injury caused by the negligently-laid trap.

      One problem is that traps are “fire and forget,” unlike competition with a person. Someone in an MMA match can tap out and a boxer can throw in the towel, but someone stuck in a pit or a snare can’t just walk away, and even someone leaving the match may get caught in a trap. That causes big problems for consent, which must be ongoing. That alone might be enough for a court to allow recovery, which would quickly lead to traps being disallowed.

      • James Pollock

        Wouldn’t the argument be that consent was ongoing as long as the competitor was on the field of play? Consider: In field sports such as football or baseball, if a player is injured during live play, play continues until a stoppage is reached within the rules of the game, THEN an injury timeout occurs to tend to the injured player (and remove him or her from the field, with assistance if necessary, before play resumes.)

        In military terms, traps are “landmines”. The U.S. uses landmines that deactivate over time if not triggered, but it is far cheaper to make mines that don’t, and many people are injured by mines triggered long after the conflict that caused their original placement. As a result, there are treaties that cover the use of, and removal of, landmines. This might apply to even an overseas HG event.

      • Consider: In field sports such as football or baseball, if a player is injured during live play, play continues until a stoppage is reached within the rules of the game, THEN an injury timeout occurs to tend to the injured player

        I’m not sure that, under ordinary circumstances, injured players have actually (and effectively) withdrawn their consent to be tackled. Unless a player makes it clear that consent has been withdrawn, the implied consent that comes with playing the game would still seem to be in effect.

        However, suppose a player twisted their ankle after the snap in football, but long before the play ended. If the player began shouting “my ankle is hurt, I’m not playing anymore, stay away from me,” and another player heard and understood that he was withdrawing consent but tackled him anyway, causing injury, then I think that player might have a colorable cause of action.

        Of course, the injured player would probably get fired for his trouble, since consenting to play the game by the rules is part of being a professional football player. But that’s a separate issue from whether or not he could withdraw his consent to be tackled mid-play.

      • James Pollock

        “Unless a player makes it clear that consent has been withdrawn”

        That was my point… CAN consent be withdrawn at any time, or are there limits to when and how consent can be withdrawn (as, for example, removing consent during play? The general inquiry that comes up is usually “was what person X did within the scope of the consent given by Y?” (being slashed or clubbed with a hockey stick, a late blow after the bell in boxing, a hit out of bounds in football) Within the rules of football, there are actions that a ballcarrier can take that, within the rules, do not permit a hit (calling for a fair catch, going out of bounds, throwing the ball, taking a knee) all of which indicate a voluntary act of surrender… but the defenders who do not properly respect these are charged with a personal foul, not with battery. I would argue that just being on the field implies a consent to be hit… or at least, a waiver that moves the recourse from a court of law to a ruling by a referee. Even when a player is fined by the league for violating the rules, the money doesn’t go to the wronged player. Now, if a player goes into the stands (as has happened in basketball) to assault a spectator, that’s a different question… and players not in the game are just spectators with REALLY GOOD seats.
        Obviously, nobody who’s rational would give consent to be plunked by a fastball… but plunking result in the pitcher being ejected from the game… not criminal charges.

      • CAN consent be withdrawn at any time, or are there limits to when and how consent can be withdrawn (as, for example, removing consent during play?

        I could not find any cases discussing this in the context of a sport, but here is the general rule from the Restatement (Second) of Torts: “Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.” So unless there’s an exception, consent can be withdrawn at any time, as long as the withdrawal is properly communicated.

        a professional football player may have a contract with his employer or the NFL but likely does not have a contract with his fellow players. So let’s consider the possibility that the terms of the consent may include, expressly or by implication, a privilege to continue to act. The commentary to the Restatement is instructive:

        “On termination of the consent it ordinarily ceases to be effective and the actor is no longer privileged to continue his conduct. There are, however, situations in which the consent has become irrevocable either by its terms or by separate contract or because the license given is coupled with an interest conferred upon the actor, which is itself a property right of which he cannot be deprived. In this case the attempted termination is not effective. These situations arise particularly in connection with licenses to enter land. … There may also be cases in which an estoppel arises against the person who gives the consent, or the situation arising is otherwise so unfair and inequitable to the actor that the other will not be permitted to terminate his consent without adequate notice and an opportunity afforded to the actor to protect his interest.”

        Clearly there’s no estoppel, property right, or license to enter land here. Nor do I think that the situation is “so unfair and inequitable” to the other player that the injured one cannot terminate his consent on the spot. I can’t think of a situation where declining to tackle the injured player would change the result of the game, for example, which would be just about the only reason terminating consent on the spot would be unfair to the other players.

      • James Pollock

        But “declining to tackle” isn’t the only situation in play.

        To use the injury situation, and injured player who lies down on the field in the middle of play may still be battered in any number of ways not including a tackle. The most obvious one would be if an injured player were close enough to a fumble to get caught up in the scrum of players attempting to recover the fumble. In that case, no player is attempting to further injure the injured player and no player is even attempting to touch the injured player, but further injury IS certainly possible and play will not be stopped until the referees untangle the players sufficiently to determine possession of the ball.

        Now, it is highly unlikely that a non-injured player would elect to leave a game in mid-play (though there have been cases of professional athletes declinding a coach’s instruction to take the field. There are other examples in amateur sports… notably the final minute of the 1976 Olympic basketball gold-medal game.

        I would argue that taking the field in an organized sporting event implies that consent to withdraw may be made only under the rules of the organizing agency. For sports that feature continuous play, that would include accepting the risk of injury involved in normal play of the game (buy insurances!) but also the risk of injury caused even after the player has indicated a desire to withdraw (whether because of injury, fear of injury, sudden religious conversion, or any other reason).

      • The most obvious one would be if an injured player were close enough to a fumble to get caught up in the scrum of players attempting to recover the fumble. In that case, no player is attempting to further injure the injured player and no player is even attempting to touch the injured player, but further injury IS certainly possible and play will not be stopped until the referees untangle the players sufficiently to determine possession of the ball.

        But in that case we don’t have an intentional battery (as you say there was no attempt to touch the injured player) or even necessarily negligence (no attempt to injure suggests reasonable care being taken), so the withdrawal of consent is immaterial because the injured player wouldn’t have a cause of action anyway. If the injury was the result of negligence then the defendant could fall back on assumption of the risk: even a player who withdraws consent has still assumed the risk of injuries resulting from the normal course of play until he or she can manage to get off the field, just as if he or she were a spectator who ran onto the field.

        I would argue that taking the field in an organized sporting event implies that consent to withdraw may be made only under the rules of the organizing agency. For sports that feature continuous play, that would include accepting the risk of injury involved in normal play of the game (buy insurances!) but also the risk of injury caused even after the player has indicated a desire to withdraw (whether because of injury, fear of injury, sudden religious conversion, or any other reason).

        That’s a fair argument, and if it were the plainly stated rule I would think it was reasonable. But at least in jurisdictions that have adopted the Restatement it would have to be based on arguing that doing otherwise would be “unfair and inequitable” to the other players, and I can see reasonable arguments for both sides in that case. On the injured player’s side we have, well, an injury as well as the fact that it’s just a game. On the other players’ side we have the fact that it’s a professional game with a lot of money and emotional investment riding on it, as well as the chilling effect that allowing the litigation might have on the sport (e.g. a player planning to quit anyway might suddenly withdraw consent in the hopes of getting a final payout). Since I think it’s hard to say for sure that the exception would apply, I tend to fall back on the general rule.

      • I’d like to go back to a point James Pollock made in passing, specifically the issue of fouls. In football (among other sports), there are all sorts of fouls related to physical contact, many due to their potential to cause injury (helmet-to-helmet for example). Given that these are explicitly prohibited under the rules of the game, I don’t believe a case could be made that this would be within the scope of their consent, yet as James Pollock points out, you don’t see players suing or pressing charges against each other over them (at worst the NFL may fine the fouling player, and the fouled player presumably receives some sort of disability compensation if injury occurs). Perhaps there’s something in their contracts that basically says anything that happens on-field between players is to be handled by the NFL rather than courts, or something like that? Not sure if I’m explaining that well, but I am unaware of/can’t think of the proper terminology. Could something like that apply to these sorts of consent issues?

      • In football (among other sports), there are all sorts of fouls related to physical contact, many due to their potential to cause injury (helmet-to-helmet for example). Given that these are explicitly prohibited under the rules of the game, I don’t believe a case could be made that this would be within the scope of their consent, yet as James Pollock points out, you don’t see players suing or pressing charges against each other over them .

        That’s a good question, and there are several reasons that I think explain it. One is that many jurisdictions require that a sports injury be caused by recklessness or intentional conduct rather than mere negligence, which rules out most injuries, especially when it comes down to actually proving intent. Another reason is that, if a person is insured, then they have little reason to bother suing, since they’ve already been compensated.

        But there have been examples of NFL players suing other players for injuries received on the field. See, e.g, Hackbart v. Cincinnati Bengals, Inc., 601 F. 2d 516 (10th Cir. 1979) (note that the Bengals’ codefendant was the opposing player, Charles “Boobie” Clark). Wikipedia summarizes the effects of the case: “As a result of the lawsuit, the National Football League mandated that all stadiums had to be equipped with X-Ray machines. The head slap maneuver which injured Hackbart was banned. Later, rules against spearing with the helmet and helmet to helmet contact were created. Hackbart settled with the Bengals and the Broncos filed a Workman’s Compensation claim which paid for the surgery that was performed in 1976.”

  4. Melanie Koleini

    What about child abuse laws? I recently read an article about a mother arrested for making her 8 year old walk to school in 30 degree weather on city sidewalks. (I forget the exact distance but I think the school was between 2 and 5 miles away.)

    If parents can be charged with child endangerment for letting their children out in the city unsupervised, can a parent really allow their 12 year old (the youngest age for game contestants) to compete in anything resembling adult level MMA?

    If someone really did want to create a legal version of the Hunger Games, I think they’d avoid minors and recruit 18 to 21 year olds for tributes.

    • The child would have to consent as well, of course, and that marks a difference between this hypothetical competition and forcing an 8 year old to walk multiple miles to school in below-freezing weather.

      Children as young as 6 compete in MMA and similarly young children compete in boxing, although pediatricians are opposed to it (and probably rightly so). Youth boxing follows the rules of the USA Boxing Rulebook, which does not reward knockouts, and helmets are required, so it’s somewhat toned down from professional boxing, but it’s still a sport focused on striking an opponent in the head and chest until he or she submits or cannot continue.

      • James Pollock

        Girls as young as 13 used to compete in Olympic gymnastics. Tiger was allegedly golfing at 3. Have you seen the parents on the kiddie pageant TV shows? I think if you can see a situation where true gladiatorial-style games are accepted an honored by a society, you see a society where children would be allowed to participate if they had sufficient skill and talent to do so (think ancient Sparta for the extreme version of this).

      • Melanie Koleini

        There are (at least) 2 big differences between kids participating in current sports and the theoretical Hunger Games.

        1) To the extent children are allowed to participate in full contact sports like MMA, they are competing against other children close to their own size and age. In the Hunger Games you could have a 50lbs 12 year old getting beat-up by a 200lbs 17 year old.

        2) In the real-world, there are adult referees present that can end a match an immediately remove the child from the field of play.

      • Those are good points, but I’m not sure that the law actually requires such measures or if they’re just good ideas. After all, there are many other safety measures that could be required (e.g. minimum ages, licensing, neurological and physical exams before and after every fight, health and disability insurance for all participants, etc). One might say that the existing safety practices amount to a standard of reasonable care below which is negligence and above which is superfluous. The problem is that assumption of the risk is designed precisely to allow people to waive a duty of reasonable care owed to them.

        Now it is true that the more dangerous something is the harder it is to believe that a child (especially a young child) truly understood and appreciated the risk involved because a rational person would not agree to such an extreme risk. For example, it’s easy to believe that a 12 year old can understand and appreciate the risks involved in bowling but harder to believe that he or she can understand and appreciate the risks involved in BASE jumping (one of the most dangerous sports in terms of the rate of deaths). So while it might be theoretically possible to have, say, mixed age-class Games, proving that the younger participants actually assumed the risk is another matter.

      • James Pollock

        Melanie:
        First, note that the risk of injury from participation in world-class gymnastics competition, or competetive cheer, or several other sports children are allowed to participate in is actually not in competition, it is in training, which does generally have adult supervision, but not typically disinterested supervision. When the adults measure their achievements in the performance of the children, the children’s best interests can be lost.

        Now, IF you have a society that favors bloodsport in children (as ours generally does not, although there IS some glorification of youth violence in popular culture.), THEN it follows that children who excel will be permitted to participate. I think it would take a societal change from our present society, which generally consigns bloodsport to the fringes, but I don’t for a moment think that such a change is impossible.

        As for weight/size limits, this is done to produce an interesting experience for the spectators as much as anything else. Gambling on the outcome is one of the major reasons why sports exist, Now, in a fight for survival, size and brawn are certainly important, but they are NOT the only factors, as was explored most thoroughly in the classic science fiction story “Arena”, which is best known in the adaptation made for the original Star Trek series. (Captain Kirk, at a severe disadvantage against the tougher, stronger Gorn, nevertheless wins by fashioning a cannon out of materials at hand.) Cunning, experience, and adaptability are also important, as are such difficult-to-measure qualities as toughness and determination. It is certainly arguable that these factors CANNOT be measured when tapping out is possible.

        (note: I am not arguing that gladatorial combat games can or should be set up for participation by children. Or adults.)

  5. I suppose next you’ll tell us that Battle Royale (Japanese manga + film) is illegal too!

    • If it were done in real life of course it would be illegal. Japan is explicitly shown to have a regular military in the book and the current Japanese constitution forbids that.

  6. Melanie Koleini

    The short lived Reality TV show, ‘Kid Nation’ used minors as their stars. The show was canceled because it had low ratings not because it was found to be illegal but there was a lot of speculation at the time about violation of child labor laws and not providing appropriate adult supervision. (http://en.wikipedia.org/wiki/Kid_Nation)

    The Hugger Games are pretty heavily televised. What precautions would the game organizers have to take to make sure the participants are legally scene as competitors in a sporting event and not as actors or employees?
    On the other hand, could the Games still go on if the participants are treated as employees?

  7. Pingback: SF Tidbits for 3/19/12 - SF Signal – A Speculative Fiction Blog

  8. What, if any, are the international law implications of the nation of Panem running the Hunger Games? It’s pretty explicit that they do this as a way of punishing the formerly (in the first book) rebellious provinces, but it’s not genocide – it’s actions taken against a relatively small number of people, who are at least allegedly randomly selected. Would other nations be justified in “interfering” with the practice?

  9. The Roman law concerning gladiatorial games treated the games as sacred institutions: the dying gladiator’s blood was a sacrifice to the gods of the underworld (dis manibus).

    Could one claim that a privately organised deathmatch, with voluntary competitors, where the loser’s blood would be a voluntary sacrifice to gods, is protected by 1st Amendment?

    • Probably not. The 1st Amendment is not absolute, even when it comes to religion. The law here is a little confused because Congress has statutorily overruled the Supreme Court by passing the Religious Freedom Restoration Act (later held unconstitutional as applied to the states but upheld with regard to the federal government) and the Religious Land Use and Institutionalized Persons Act (considerably narrower than RFRA but solidly constitutional). Thus, as I understand it, there are at least 3 standards by which free exercise of religion cases may be decided: strict scrutiny for federal actions under RFRA, strict scrutiny for state and local land use regulations and regulations that affect prisoners, and the constitutional default given in Employment Div. Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990).

      Even under a strict scrutiny test I think laws criminalizing murder would pass. Preventing the killing of human beings is just about the most compelling governmental interest there is. Laws against premeditated murder are pretty narrowly tailored, hence the lesser degrees of murder, manslaughter, assault, and so forth. There are also a whole host of defenses that prevent the laws against murder from being overbroad. And the laws are also probably the least restrictive means available, since they only criminalize the actual murder and not, say, sporting events in general.

      That’s an oversimplification of the analysis, but it gives a rough idea of how it would go. But more than that, whatever the First Amendment is supposed to mean, it cannot possibly mean that religious adherents could literally get away with premeditated murder because that would be absurd. If murder falls within the free exercise clause then just about anything can, which would make it meaningless.

  10. Pingback: The Hunger Games and Dangerous Sports II | Law and the Multiverse

  11. okay, i’v been obsessed with the book for a while now. (not to be morbid) I think they can happen. after all it happens 100 years after a nuclear war. so what happemns to people with no leadership? they follow someone that is very convincing, if this person believed it was okay, AKA holicoust, then it would happen. People would do anything for entertainment, especially if our future generations deamed the games humane, So if we started now with the games being paint ball or mma, it could eventually be stretched out in the future to become deadly, and if our government in the future falls apart and we loose everything we have now then yes it is possible. our country is morbid and thinks violence is entertaining. Like someone said we film violence and put it on youtube. i think it would be ourtragious if we ended up in this situation but i think it is possible ( i am not a lawyer, sorry for all my spelling and grammer mistakes, just stating my opinion)

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>