Okay, let’s be honest, at some point, every hockey fan has watched a referee miss a call so badly that the thought crosses your mind: can we sue him? The answer, thankfully for everyone involved, is almost certainly no. But the legal reasoning behind why is actually a lot more interesting than you’d expect, and it came up in my sports law lecture this week in a way that I could not stop thinking about.
The article we discussed was Stepping in to Step Out of Liability: The Proper Standard of Liability for Referees in Foreseeable Judgment-Call Situations by Michael Mayer, published in the DePaul Journal of Sports Law.
What Mayer Is Actually Arguing
The core of Mayer’s argument is that referees in judgment-call situations should be held to a standard of recklessness rather than ordinary negligence. The distinction matters more than it sounds. A negligence standard basically asks: did you fail to act as a reasonable person would? A recklessness standard asks something higher: did you consciously disregard a substantial risk of harm?
Mayer’s reasoning for why the lower bar is appropriate comes down to a few things. First, athletes in contact sports understand what they’re signing up for. They assume the risk. They consent to the physical nature of the game. Second, and this is the argument I find particularly pragmatic, slapping a negligence standard on referees would be an absolute disaster in practice. Costs go up, lawsuits multiply, and perhaps most importantly, you start losing officials at the amateur level where many refs are volunteers. Nobody is strapping on skates at a Tuesday night beer league game to also sign up for personal liability exposure.
I find myself agreeing with Mayer on balance, and my own research focus makes me feel that position pretty firmly. Contact sport athletes, and professional hockey players especially, are not people who wandered into danger by accident. These are highly trained, well-compensated professionals operating inside a league that has its own internal systems for discipline and accountability (which we all agree could use some work). Holding referees to a negligence standard in that environment creates something genuinely unworkable: officials second-guessing every call with one eye on the game and the other on potential personal liability. That’s not officiating.
And an example
As if the hockey world wanted to hand me a topic for this weeks discussion board in class on a silver platter, something happened last night that is almost a textbook illustration of everything Mayer is writing about.
In a game between the Buffalo Sabres and the New York Islanders, Sam Carrick and Anders Lee dropped the gloves. Carrick landed hard on his arm, and it seems that he is week to week. For most players that would be rough. For Carrick, the timing is brutal in a way that goes beyond the injury itself. This is the Sabres’ first playoff run in fourteen years, and he’ll likely miss some of it. On top of that, he has a contract extension on the table, and the leverage he would have built this postseason is now gone until he heals.
The fight only happened because the referees missed a call on one of Carrick’s teammates that had left him bleeding. And this is something pretty unique to hockey, players self-govern. If your team feels a referee missed a call, someone answers for it. The code is unwritten, but it is very much understood, and anyone who has watched this sport for any length of time understands how it operates.
So now you have a situation where a referee’s missed call was, in a pretty direct sense, upstream of a serious injury, a missed playoff run, and real financial consequences for a player heading into contract negotiations. The question of negligence practically writes itself.
And yet, under Mayer’s framework, the referee is not liable for any of it. The reason comes back to assumption of risk and exactly the kind of self-governance culture I just described. Carrick is a veteran professional. He has been in this league long enough to know that stepping into the role, of answering the bell when a teammate is wronged, is part of what it means to play this game the way he plays it. He consented to that, not just in the abstract sense of signing an NHL contract, but in the very specific sense of understanding hockey’s retributive culture and participating in it.
The referee’s missed call was upstream. Carrick’s choice to engage, a choice rooted in hockey’s own internal code, was the intervening act. That causal complexity is exactly what makes a recklessness standard more intellectually honest than a negligence one here. You can’t hold an official personally liable for the downstream consequences of a culture the sport itself has chosen to maintain.
Why I Keep Thinking About This
Part of why this landed so hard for me is that my dissertation research lives right in this tension. Hockey’s injury culture is not incidental to the sport, it is load-bearing. The fighting, the physical retaliation, the unwritten code—these aren’t bugs, they’re features, at least from the perspective of how the sport has historically understood itself. And that makes questions of legal accountability genuinely complicated, because you’re not just asking who was negligent. You’re asking where sport culture ends and legal responsibility begins.
Mayer’s article doesn’t answer all of those questions, but it frames them in a way I think is honest. And every night gives us areal, live, deeply unfortunate examples of exactly what’s at stake.
Get well soon, Sam Carrick. And maybe someone should send Mayer’s article to the officials’ union just for fun.
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