Forget Justice Blackmun’s rambling missive about baseball greats in Flood v. Kuhn. Judge Kavanaugh’s dissenting opinion in the Sea World killer whale case (who’da thunk killer whales were dangerous!?) offers a great homage to sports, with a special shot-out to the Captain, Derek Jeter.
Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.
But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so. Americans like to witness the thrill of victory, to cheer the linebacker who hammers the running back at the goal line, to yell with admiration as Derek Jeter flies into the stands down the left-field line to make a catch, to applaud the gymnast who nails the back flip off the balance beam, to hold their collective breath as Jack Hanna plays with pythons, to root on the marathoner who is near collapse at the finish line, to scream “Foreman” when the announcer says “Down goes Frazier.” And American spectators also commiserate during the “agony of defeat,” as immortalized in the Wide World of Sports video of a ski jumper flying horribly off course.
The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?
Obviously, the answer is the government, not the athletes or the sportsmen themselves.
To the extent sports or entertainment activities raise concern about the risk of injury to the participants, several
extant legal bodies possess significant authority to clamp down on unreasonable dangers: Congress, state legislatures, state regulators, courts applying state tort law. I take no position here on whether SeaWorld – or for that matter the NFL or NASCAR – should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor. I respectfully dissent.
And, totally relevant, I paraphrase Judge Livington’s dissenting opinion from Pierson v. Post:
This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over [OSHA]; they would have had no difficulty in coming to a prompt and correct conclusion.