The opinion
TAFT, Justice,
dissenting from the overruling of the request for en banc consideration.
Acknowledging this is a ease of first impression in Texas, the Panel declined to consider “policy arguments.” The Panel sees a difference between participants caught in the spirit of the contest and nonparticipants who have the benefit of reflection before they act. I wholly disagree with the reasoning and result of the Panel’s opinion.
Competitive Contact Sports Doctrine
Nevertheless, the Panel opinion’s development of the law pertaining to the competitive contact sports doctrine is sound and I repeat it here. As a general rule, assumption of risk has been abolished as an affirmative defense to negligence actions. See Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). Instead, the factfinder must weigh the plaintiffs consent as a comparative negligence factor. See id.; see also Tex. Crv. Pkac. & Rem.Code Ann. § 83.001 (Vernon 1997). However, “strict liability cases and cases in which there is a knowing and ex- ' press oral or written consent to the dangerous activity or condition” are an exception to the general rule. Farley, 529 S.W.2d at 758 . The competitive contact sports doctrine, an outgrowth of assumption of risk, falls within the exception. See Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.App. — Dallas 1991, writ denied).
The reason the law relieves participants of the higher standard of care (requiring intent or recklessness rather than negligence) is to encourage a vigorous and competitive spirit on the field of play. See Nabozny v. Barn-hill, 31 Ill.App.3d 212 , 334 N.E.2d 258, 260 ([1st Dist.] 1975); Marchetti v. Kalish, 53 Ohio St.3d 95 , 559 N.E.2d 699, 703 (1990). The doctrine is based on a participant’s acknowledgment of the dangers of the game and his readiness to risk possible injury as an opportunity cost of the fun he could have. All participants in sporting activities are presumed to be aware of certain dangers inherent in a particular sport they play. See Thompson v. McNeill. Because applying the negligence standard of care to sports participants could chill vigorous and competitive *743 participation, courts are reluctant to allow a cause of action for injuries received during the course of play. See Nabozny, 334 N.E.2d at 260 ; Marchetti v. Kalish, 569 N.E.2d at 701. Because, “some of the restraints of civilization must accompany every athlete onto the playing field,” Nabozny, 334 N.E.2d at 260 , a participant in a competitive contact sport may recover damages from another participant only if that other participant intentionally or recklessly injures the first in a way not contemplated by the sport. Connell, 814 S.W.2d at 489 . This rule balances the need to protect athletes while maintaining and encouraging the competitive spirit, see Marchetti, 559 N.E.2d at 703 , and recognizes that actions that would otherwise be considered negligent in everyday life are accepted, and often encouraged, in a sporting activity. See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App. — Amarillo 1993, no writ).
Where I part with the Panel opinion is in: (1) its assertion that there is a generic difference between participants and sponsors regarding the benefit of reflection before action; and (2) its express refusal to consider policy arguments in deciding an issue of first impression. Appellant had plenty of time to reflect upon the risks involved in playing war games shooting paint balls before participating. In addressing an issue of first impression, we ought to consider policy arguments. We also ought to consider the manner in which other jurisdictions have decided the matter.
The Benefit of Reflection
The Panel opinion relies on a difference between participants caught in the spirit of the context and nonparticipants who have the benefit of reflection before they act. This ignores the fact that, when dealing with dangers inherent to a particular sport, participants are well aware of the risk in plenty of time to reflect on whether to accept those risks. As stated in the original opinion, and repeated above, “The doctrine [of competitive contact sports doctrine] is based on a participant’s acknowledgement of the dangers of the game and his readiness to risk possible injury as an opportunity cost of the fun he could have.”
Policy Arguments
Applying the negligence standard of care to sports sponsors for injuries due to inherent dangers of a competitive contact sport is just as likely to chill vigorous and competitive participation as applying it to participants. Indeed, it is likely to chill the opportunity to engage in such sports. The same balance between the need to protect athletes while maintaining and encouraging competitive spirit applies to sponsors as well as participants.
Other Jurisdictions
The Panel opinion acknowledged Ohio cases as the genesis of the competitive contact sports doctrine. Appellees pointed out in their original brief, and on rehearing, that Ohio has applied the doctrine to nonparticipants. See Gallagher v. Cleveland Browns Football Co., 638 N.E.2d 1082 (Ohio App. 1994); Kline v. OID Assoc., Inc., 80 Ohio App.3d 393 , 609 N.E.2d 564 (1992). Appel-lees also rely on decisions from California and Illinois disallowing recovery against nonparticipant for negligence under competitive contact sports doctrine rationales. See Har-rold v. Rolling “J” Ranch, 19 Cal.App.4th 578 , 23 Cal.Rptr.2d 671 ([2d Dist.] 1993); Keller v. Mols, 156 Ill.App.3d 235 , 108 Ill. Dec. 888 , 509 N.E.2d 584 ([1st Dist.] 1987).
Conclusion
In deciding an important issue of first impression in Texas, I suggest that appellees’ persuasive arguments should at least be addressed. Because a majority of this Court overrules the request for en bane consideration without having done so, I vigorously dissent.
HEDGES and NUCHIA, JJ., agree with this dissenting opinion.