Is it just me or did the final lap of yesterday’s NASCAR race from Talladega eerily resemble an episode of COPS? For those who haven’t seen it yet, here’s what I’m talking about. Carl Edwards was a good sport about it, but that certainly isn’t racing. That was more like a perfectly performed LAPD PIT maneuver — at 190MPH! Brad Keselowski may have won the race, but his overzealous driving and NASCAR’s promotion of “The Big One” leave me with a sour taste in my mouth.
Those of you who know me know that I love racing, and I don’t think I’m alone when I say that one of the reasons that I love it is the element of danger. The intensity created by watching cars, or motorcycles, battle for position at 200MPH is unmatched in any sport. I’m not watching to see the accident; rather, I’m marveling at the skill it takes to maneuver a vehicle at those speeds and NOT crash. However, when I see NASCAR hyping “The Big One” in its pre-race broadcast (as they did yesterday at Talladega) and then see Keselowski intentionally spin a competitor on the final lap, I get sick to my stomach.
This morning I was thinking more and more about this issue and realized that NASCAR, and its tracks and drivers, may be risking much more than huge insurance claims (assuming the insurance company will even honor the claim) and hits to their reputation, they may in fact be risking criminal prosecution. Let me explain. Assume that a wreck (notice I didn’t call it an accident; accidents aren’t intentional….) like the one yesterday were to have killed a spectator. I would posit that, a charge of negligent homicide is conceivable.
You see, the standard for negligent homicide (in most jurisdictions) is taking a substantial and unjustifiable risk that a person will be killed, when a reasonable and prudent person would not take the risk. In the present case Keselowski seems to have clearly hit Edwards intentionally; afterall , it was the only way for him to move Edwards out of way so that he could win the race! The question is whether or not hitting him in that manner was unjustifiable. I would say that it most certainly was not justifiable. Afterall, this was not a case of typical bump drafting (which I don’t agree with either), but was a case of intentionally spinning a competitor. Keselowski had to have known that if he hit Edwards like that in the rear quarter panel, he was going to spin him. It’s a simple principle that all racers know. I also believe that Keselowksi and others NASCAR drivers are keenly aware that if you spin in the manner that Edwards spun, there is a high likelihood that the car will become airborne, and when a car becomes airborne in the tri-oval section of the track it is most certainly going to have a violent impact with the fence. Fortunately, accidents like this are relatively rare, but I think can think of several that stick in my memory (including Bobby Allison at Talladega). A reasonable person knows that this risk exists and wouldn’t have spun Edwards in the manner Keselowski did; it was simply to dangerous (not to mention a violation of the rules).
While NASCAR and ISC (the track owner) didn’t directly participate in the actions of Keselowski, they certainly didn’t do much to stop it. Afterall, NASCAR acknowledges that bump drafting is part of the sport and even promotes the big crashes, as one of the reasons to watch the superspeedway races.
Granted, it would be a tough case for a prosecutor, but no one ever thought that hockey fights could bring about criminal charges and we’ve seen a couple of those in the last few years. Something for the NASCAR attorneys to think about at least…
Agree, disagree, or think my writing stinks? Let me hear about it.
Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.
