Draymond Green Hasn't Learned His Lesson, But You Can

The NBA announced last night that the basketball league indefinitely suspended Golden State Warriors forward Draymond Green for striking Phoenix Suns center Jusuf Nurkić in the face during Tuesday night's game.

This isn’t the first time Green has been disciplined by the team or the NBA. The Warriors sent him home for cold-cocking former teammate Jordan Poole during an October 2022 practice. The NBA suspended him for chest-stomping Domantas Sabonis during the 2023 Playoffs. The league also sat Green down for five games after he wrapped Rudy Gobert in a choke hold just last month.

Each time a discipline against Green comes down, you would think that he would learn from his consequences. But he hasn’t learned.

But good news: You can!

Draymond Green’s latest on-court incident provides an excellent review of intentional torts, especially when it comes to establishing the requirement of intent and examining the potential defense of consent.

But let’s first review what happened during Tuesday’s game.

Green was ejected with 8:23 left in the third quarter after he swung and hit Nurkić in the head while defending him. At first, while Green's back was turned to Nurkić, he repeatedly held Nurkić off him. Eventually, Green turned and hit Nurkić in the head with his hand. Officials deemed the foul a flagrant 2 after a video review.

After the game, Green said this about the incident:

“I am not one to apologize for things I mean to do, but I do apologize to Jusuf because I didn't intend to hit him,” Green said after the game, via ESPN. “I sell calls with my arms ... so I was selling the call ... and I swung and unfortunately I hit him.”

First-year law students should recognize that Green’s “excuse” is meaningless and doesn't negate a potential claim of battery. His intent to sell a foul to the officials—instead of having the actual intent to hit Nurkić—is irrelevant.

Green seems to be focusing on “specific intent”; however, intent can also be established by “general intent.” The distinction between specific intent and general intent is crucial in establishing the intent for prima facie cases of intentional torts. It’s a basic distinction that first-year law students learn from the classic 1955 case, Garrett v. Dailey.

The intent of the actor that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis of the tort. Specific intent exists when the actor’s purpose in acting is to bring about certain consequences. General intent, on the other hand, exists when the actor knows with substantial certainty that those consequences will result.

Take Garratt v. Dailey, for example. In that case, a five-year-old boy, Brian Dailey, pulled a chair out from under Ruth Garrett just as she was about to sit down, causing her to fall and get injured. The legal question was whether Dailey had committed battery, which depended on whether he had the necessary intent. Even if Dailey did not desire that Garratt she hit the ground (and, therefore, lacked specific intent), if he knew with substantial certainty that she was trying to sit and would hit the ground, then he will have the intent necessary for battery. That’s because Dailey will have deemed to have had the requisite general intent sufficient for maintaining a battery claim.

Now, let's go back to a part of Green’s statement that's problematic for him: “… I didn't intend to hit him … I swung and unfortunately I hit him.”

Okay, let’s give Green the benefit of the doubt. Let’s assume that he, in fact, did not intent to hit Nurkić. That simply means that Green lacked the specific intent required for a potential battery claim (which, for bar exam purposes, is the intent to create a harmful or offensive contact to plaintiff’s person and, in fact, a harmful or offensive contact did occur).

But Green cannot escape the argument that he had the requisite general intent. By wildly swinging his arms while defending Nurkić and, according to Green’s own words, by trying to sell a foul, Green knew with substantial certainty that he would make contact with Nurkić. And, in this particular situation, Green swung his arm straight into Nurkić’s head.

Therefore, Green simply brushing this contact off as an accident (“I swung and unfortunately I hit him”) doesn’t negate the establishment of intent.

What about the other elements of a prima facie case of battery? Remember that a battery, for bar exam purposes, is the intent to create a harmful or offensive contact to plaintiff’s person and, in fact, a harmful or offensive contact did occur).

Was there a “harmful or offensive contact”? Sure. Nurkić got sideswiped in the head and fell to the ground. That seems harmful to me. But, in any event, “offensive” in this context simply means an unwanted touching, and surely Nurkić didn’t want to be sideswiped in the head as he was.  

Did that contact take place “to plaintiff’s person”? Yes. It was Nurkić’s head!

Finally, was there causation, i.e., a causal link between the plaintiff’s conduct and the defendant’s contact? Of course. It’s obvious that Green’s swinging his arms was a substantial factor in causing the contact with Nurkić’s head.

As a result, Nurkić can bring a potential battery claim against Green in a hypothetical law school or bar exam question based on these same facts.

Green might argue that getting hit in the head is part of the game and that Nurkić consented to such “rough play” during a high-stakes professional sports game like basketball.

This argument is weak, though. There have been notable legal cases involving athletes suing for injuries caused by the actions of other players during professional sports games. These cases often center on whether the conduct was so extreme that it went beyond the normal bounds of the sport. Here are some specific examples:

Tomjanovich v. Washington (1977): In another NBA incident, Kermit Washington of the Los Angeles Lakers punched Rudy Tomjanovich of the Houston Rockets during a game, causing severe facial injuries. Tomjanovich filed a civil lawsuit against Washington, which was settled out of court. This case is often cited in discussions of on-court violence and its legal consequences.

Hackbart v. Cincinnati Bengals (1979): Dale Hackbart, a player for the Denver Broncos, sued Charles "Booby" Clark of the Cincinnati Bengals and the Bengals organization after suffering a neck injury from a hit by Clark during an NFL game. The court initially dismissed the case, ruling that violence was part of football. However, on appeal, the decision was reversed, and it was established that professional football players do not consent to assaults that are not part of the game.

McSorley v. Brashear (2000): In the NHL, Marty McSorley of the Boston Bruins was charged with assault with a weapon after hitting Donald Brashear of the Vancouver Canucks in the head with his stick. McSorley was convicted in a criminal court, demonstrating that actions in a sports context could lead to criminal charges if they are deemed to be intentionally harmful and outside the scope of the game.

Moore v. Bertuzzi (2004): This NHL case involved Todd Bertuzzi of the Vancouver Canucks attacking Steve Moore of the Colorado Avalanche from behind, resulting in a neck fracture and concussion for Moore. Moore filed a civil lawsuit against Bertuzzi and the Canucks, which was settled years later. This incident is one of the most cited examples of on-ice violence leading to civil litigation.

So, to recap what students can learn from Draymond Green’s actions that led to his latest suspension: he had the requisite intent to commit a battery; all the other requirements for a prima facie case of battery are met; and there are no valid defenses (e.g., consent).

Of course, whether Nurkić actually brings a civil claim against Green potentially depends on several factors, like the NBA’s rules and regulations, the collective bargaining agreement between the NBA and the players’ union, and the public relations and career considerations that come with bringing a legal action against a fellow player.