Tailgating in the United States is a lucrative and increasingly expansive industry. Support for this statement is reflected in the total number of individuals, which has been estimated to be around 50 million, participating in tailgating at professional and intercollegiate sporting events in the United States. As tailgating participation has expanded, the association of tailgating and alcohol consumption has become nearly inseparable. Studies (e.g., Drenten, Peters, Leigh & Hollenbeck, 2009) investigating the motives for participating in tailgating activities have clearly identified alcohol consumption as a leading motivator. Furthermore, studies (e.g., Glassman, Werch, Jobli, & Bain, 2007) indicate drinking rates increase on game day when compared to other social occasions among college football fans.
The drinking culture, combined with the long hours of tailgating, has proven to be detrimental to event holders. As the crowd size increases, the probability of intoxicated individuals increases, thereby increasing the potential risk of crowd violence to the point that attendees are unnecessarily exposed to harm (Moore, Flajslik, Rosin & Marshall, 2008). Although most fans participating in tailgating activities conduct themselves in an orderly and appropriate manner, there are significant legal considerations for intercollegiate athletic administrators. For example, alcohol use is often associated with disorderly conduct, assaults, injuries, and even riots associated with intercollegiate sporting events.
Tailgating, while a potentially profitable marketing program, poses unique legal and risk management challenges for athletic administrators. Perhaps the major challenge for collegiate administrators is to avoid liability for negligence by: (1) failing to meet the duty of care to protect the fans at intercollegiate pre- and post-game events, (2) failing to recognize the responsibilities of premise liability, and (3) failing to address the issue of foreseeability. If there are no policies, guidelines and/or restrictions concerning tailgating activities, it is quite possible that a university (or event venue), as the landowner, may be sued for negligence as a result of failing to meet one or more of these legal responsibilities.
An important component in preventing an incident from happening is the landowner (e.g., university/college) being able to foresee possible tailgating activities and manage those risks. Specifically, certain college football games result in more alcohol consumption than others, including homecoming, contests between interstate rivals, and high profile games such as league championships and bowl games. These results are significant as other studies have revealed that drinking alcohol can increase an individual’s violent tendencies, especially when placed in an emotionally charged atmosphere such as an intercollegiate football game.
Intercollegiate sports, especially football, facilitate its business operations by inviting fans to its campus and stadiums to both to participate in, and contribute to, the social experience of tailgating. For this relationship to exist, the fan (invitee) is on campus (business property) by either an expressed or implied invitation, and with a purpose that benefits the college (the business). A person who tailgates on university premises or pays to park on a university campus to partake in tailgating activities as part of a university-sponsored activity achieves has the status of business invitee. Where a duty under premises liability exists, the school may be held liable under the concept of negligence for his or her failure to protect the injured third party from the actions of another person.
Given the increased levels of potential risk for tailgating participants, the purpose of this study was to conduct a content analysis of the alcohol consumption tailgating policies of Division I intercollegiate football programs, specifically programs that are affiliated with Power 5 conferences. The results from the 66 schools revealed that five issues surfaced from among the 16 items regarding alcohol and tailgating policies at football games of Power 5 affiliated athletic departments. Forty (61%) did not identify policies for alcoholic consumption in the tailgate area. Forty-six (70%) athletic departments required tailgating activities to take place in specific areas. While 35 (53%) opened the tailgating areas between three to six hours before the start of the Saturday contest, five (8%) allowed entry on Friday evening, and two (3%) permitted tailgaters to enter the area as early as Thursday evening.
Regarding the closing of the tailgating areas, 42 (64%) did not indicate a time. Thirty-three (50%) did not list any penalties for intoxication in the tailgate areas. Fifty-eight (88%) did not possess a policy which limited the type of alcohol (e.g. no hard liquor, beer only) allowed in the tailgate area, while 58 (88%) did not have a policy which restricted the amount of alcohol tailgaters were allowed to bring into the tailgating areas. The results also indicated that 63 (95%) held home football games on the campus. As landowners, the university has a legal duty to have qualified security personnel to monitor the tailgating area. However, 20 (30%) of the university athletic departments indicated that trained security personnel (i.e., campus security, city police, etc…) supervised the tailgating areas.
The results of this study clearly magnify the lack of adequate tailgating and alcohol management policies. The current patchwork system of tailgating and alcohol management policies leaves many college football event administrators in a vulnerable position in terms of potential litigation. Allowing (or encouraging) an environment in which unsupervised alcohol consumption is permitted and/or tolerated, the sports organization may find itself in legal violation of social host expectations. Social host liability refers to statute or case law that imposes potential liability on social hosts as a result of their serving alcohol to obviously intoxicated persons who subsequently are involved in incidences causing death or injury to third-parties. The expectation of the social host may be extended from the actual sale or serving of alcohol to the prevision of the environment for its consumption. Through this interpretation, sports organizations must develop and implement specific policies for those patrons attending athletic events and activities to demonstrate appropriate levels of control.
For the college football event administrator, the value of tailgating may be derived from an interconnected range of occurrences the patron experiences. At one end of the spectrum, risk management measures could be perceived as being so oppressive that the value of the experience is degraded to the point that patrons choose to no longer tailgate, thereby decreasing a revenue flow to the athletic department. At the other end of the spectrum, not attending to foreseeable risks tends to degrade the value of an activity like tailgating, if left unattended. In other words, patrons would so worry about becoming injured due to the negligent actions of an inebriated tailgater, especially if the area is not monitored, that they discontinue their future tailgating involvement, which would also decrease a revenue stream to the athletic department. Ultimately, college football event administrators have to seek a balance between the two ends of the spectrum that support the value of the patrons’ experience.
In order to offset the potential for litigation and to establish a safer tailgating environment, Gillentine, Miller, and Crow (2010) developed a best practice model for tailgating, which included specific recommendations and policies for alcohol management. The implementation of the best practice model will enhance the safety and increase the consistency of decisions that are made during the administration of tailgating events for each organization.
We also recommend implementing an enterprise risk management (ERM) system in which administrators view all risks together in a coordinated and strategic framework. When ERM is appropriately put into practice, managers should consider the impact of all foreseeable risks in their operating decisions (Nocco & Stulz, 2006). In short, every risk exposure is “owned” since it is affected by the evaluation of the risk management plan (Nocco & Stultz, 2006).
Miller, J., Voigt, S., Scroggins, C., & Gillentine, A. (2019). A content analysis of tailgating alcohol policies at NCAA Division I football games. International Journal of Sport Management, 20, 109-124.