Kaku's lack of discipline in the waning moments of the Red Bulls' draw vs. Sporting KC resulted in him booting a ball into the stands from point-blank range, striking a fan in the face.
Lawsuits brought by fans who are injured at sporting events usually fail. Courts have repeatedly held that fans assume the risk of injuries that are inherent in the game. This is why fans injured by foul balls at baseball games often only find disappointment in the courts: foul balls are part of baseball, just like errant pucks are part of hockey and diving players are part of basketball.
But “usually” isn’t “always.” Injured fans have found success when they can show that the injury was caused by a force outside of the sport or when the facility failed to provide safety precautions offered by similar facilities.
Enter New York Red Bulls star Alejandro Romero Gamarra, better known as Kaku. Kaku intentionally—and dangerously—kicked a soccer ball in the direction of fans seated in the front row during Sunday’s match between the Red Bulls and Sporting Kansas City at the latter's Children's Mercy Park. At the time, Kaku was only about 15 or 20 feet from the front row. The ball hit one fan, an adult male, squarely in the face. The fan appeared to suffer a bloody nose, though he did not leave the stadium for emergency room treatment. He was also at his seat when the match ended and, based on available video, seemed to be in good spirits.
Kaku was assigned a red card and ejected. Since a red card carries an automatic one-game suspension, Kaku will miss the Red Bulls’ upcoming match with the New England Revolution on Apr. 24. Given the dangerousness of his act, Kaku could face a far lengthier MLS suspension.
The incident stemmed from Kaku apparently becoming irate with teammate Vincent Bezecourt. Bezecourt had failed to successfully pass the ball to Kaku, with the Red Bulls looking to go on a counterattack in the game's final moments. The ball was instead deflected out of bounds. Before the next play began, Kaku kicked the dead ball directly in the direction of fans, at point-blank range.
Kaku has since apologized for his conduct, in a series of tweets. “I want to take the time and apologize for my actions during tonight’s match," he wrote. "As a competitor, I was frustrated with myself and took out my frustrations in a way that is not acceptable. I love this game and would never want to disrespect it.”
I want to take the time and apologize for my actions during tonight’s match. As a competitor, I was frustrated with myself and took out my frustrations in a way that is not acceptable. I love this game and would never want to disrespect it. pic.twitter.com/0f1ufcXyJ4— kaku (@kakuromero17) April 15, 2019
At least one of Kaku’s teammates, Daniel Royer, thought that Kaku wasn’t trying to hit fans. Royer surmised that Kaku had aimed the ball at the board beneath where fans in the front row sat. Under this theory, Kaku—the Red Bulls’ Designated Player and a member of Paraguay’s national team—simply missed.
After the game, Kaku’s teammates went over to check on the injured fan and he seemed to be O.K.. But what if the fan had been a child and if the impact caused a brain injury or facial lacerations? The public’s reaction would be far more intense, and MLS would face a massive public relations controversy.
There would probably also be talk that Kaku committed a crime. Kansas law defines the crime of battery as intentionally or recklessly causing another person physical harm. In the context of the incident, the soccer ball acted as a weapon. Given that the fan does not seem to be seriously injured, and given that U.S. prosecutors almost never charge athletes with crimes over incidents that occur in sporting facilities, Kaku will likely not face any criminal law repercussions.
There could be civil law ramifications, though. As of now, it seems the fan is fine, but impact injuries sometimes manifest more serious effects days or weeks later. If the fan incurs medical expenses, if he experiences lasting pain and suffering, or if his well-being and employment are adversely affected by the physical and psychological trauma of a pro athlete kicking a ball in his face, he could consider filing a lawsuit—especially if Kaku and other potential defendants (and their insurance companies) are unwilling to reach an out-of-court settlement.
In a scenario where the fan is injured and unable to resolve the matter through an out-of-court settlement, he could sue several persons and businesses. Kaku, most obviously, could be sued given that he kicked the ball. The fan could argue that Kaku committed battery by intentionally causing harmful contact. Keep in mind, the fan would not need to prove that Kaku intended to injure him. He would only need to show that Kaku intentionally kicked the ball that injured the fan. The fan could also sue Kaku for intentional infliction of emotional distress. This tort refers to liability for behaving in such an extreme and outrageous conduct that it causes another person severe mental distress. A world-class soccer player kicking a soccer ball at an unsuspecting and innocent bystander, and at point-blank range, certainly seems shocking.
The fan could also sue the Red Bulls and MLS under a theory of vicarious liability. Employers are responsible for the negligent acts of employees when those acts are committed within the scope of the employee’s job. Here, Kaku kicked the ball during an MLS match and within his capacity as a Red Bulls player. The fan could also argue that the Red Bulls and MLS are negligent for failing to train Kaku so he would not engage in behavior that imperils fans.
Lastly, the fan could sue Kansas Unified Development and Sporting Kansas City, the owner and operator, respectively, of Children's Mercy Park. The fan could argue that while spectators assume the risk of injuries inherent in soccer, Kaku’s kick was not a “soccer move.” It was an attack. The timing also mattered: while a fan seated in the front row might accept the risk of getting him the face by a ball kicked or headed during play, no fan expects such an event during a stoppage of play. Also, if there is evidence that Children’s Mercy Park is somehow less safe for fans seated in the front row when compared to other MLS stadiums, a stronger case for liability could be made.
While these reasons suggest the fan may have a case, courts are often skeptical of injured fans’ lawsuits. Far more often than not, fans are found to have assumed the risk. Red Bulls captain Luis Robles alluded to this point after the match when telling media: “We all checked in with the [injured fan]. I guess that’s the price you pay when you sit in the front row, right?”
It’s also possible the fan’s ticket would serve as an important legal defense, particularly for the teams, MLS and the stadium. Tickets to games usually contain clauses that attempt to extinguish potential liability for injuries. The Red Bulls, for example, place such language online for fans who attend matches at Red Bull Arena:
By entering the premises for an event . . . (b) THE TICKETHOLDER VOLUNTARILY ASSUMES ALL RISK AND DANGER OF PERSONAL INJURY (INCLUDING DEATH, PROPERTY DAMAGE AND ALL OTHER HAZARDS ARISING FROM OR RELATED IN ANY WAY TO THIS EVENT, WHETHER OCCURING PRIOR TO, DURING OR AFTER THE EVENT (INCLUDING, WITHOUT LIMITATION, THE RISK OF INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OR MISCONDUCT OF THE SOCCER PARTIES (AS DEFINED BELOW) OR OTHER SPECTATORS), (c) the ticketholder agrees to be bound by the Stadium Rules of Conduct, (d) the ticketholder agrees to release and hold harmless each of MLS, RBNY, Red Bull GmbH, Soccer United Marketing, LLC, the promoters and each of their respective employees, players, musicians, officers, directors, members, partners, owners, affiliates, sponsors, contractors, and other agents and their respective affiliates, members, directors, officers, employees, contractors, agents and players from any loss, damage or injury (including death) resulting from such ticketholder’s attendance at such event….”
Fans attending Sporting Kansas City games are likely bound by similar language. If so, the fan would need to argue that in spite of such an extensive disclaimer, he could not have assumed the kind of unforeseeable danger posed by Kaku.
Even if there is no legal fallout from the fan, Kaku faces repercussions with MLS and potentially with any companies that he endorses. Endorsement deals normally contain “morals clauses,” which allow the endorsed company to end or suspend a contract when the endorsing athlete brings disrepute on either himself/herself or the company. To the extent this incident causes lasting harm to Kaku’s reputation, companies will be less interested in paying for his endorsement.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.