Certain sports, by nature, are considered violent. The game of football on all levels, from Pee Wee to the National Football League, contains a certain level of violence. Players are encouraged to hit their opponent as hard as possible. Fan’s involvement in game is heightened by hard hits, bone-shaking blocks, or quarterback sacks. Fighting in hockey, although publically stated is prohibited, is encouraged in minor leagues and the National Hockey League Fighting is engrained in the sport and will be forever. When two players drop the gloves, fans rise to their feet and cheer on the two combatants. Fighting can alter the tempo of hockey games, and often enforcers are sent into games to instigate fights to alter the flow of the game, or in retaliation for a prior egregious act by the opposing team. The punishment? A mere five minutes in the penalty box. But when does this so-called normal, yet violent part of the game cross the line into criminal behavior? Perceived assaults and batteries that would warrant criminal charges off the ice are perceived part of the game in violent sports (Standen, 2009). This question has been well documented, researched and discussed through tort law.
The term tort is used to denote a species of civil injuries or wrong (Morakinyo, 2008). Tort law is a mechanism for protecting individual’s rights from unreasonable interference (Citron & Ableman, 2003). There are three broad areas of tort law: intentional torts, negligence, and recklessness (Citron & Ableman, 2003). Intentional torts include battery and assault and a person who intentionally causes a harmful act or offensive physical contact (Citron & Ableman, 2003). That contact can be slight, but as long as there is intention with a certain consequence, it can be deemed an intentional tort. A player striking another player during a fight in a hockey game could be viewed as an intentional tort. That player is making a conscious effort to harm their opponent with a definite consequence. Negligence is defined as the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff (Morakinyo, 2008). For negligence to be proven, there must be duty of care owed the plaintiff by the defendant, a breach of that duty of care by the defendant, and damage to the plaintiff as a result from the breach (Morakinyo, 2008). Recklessness is a person knowing their actions would cause harm.
When an individual takes part in a perceived violent sport, they are assuming the risks that accompany playing such sport. There is a level of consent that a participant agrees to when playing that sport. A participant may defend their assaulting conduct on the grounds the plaintiff consented to the assault through a demonstration of volitional consent (Standen, 2009). In essence, participants are consenting to the violent nature of the sport. Professional sports are played by well-conditioned athletes who know the rules and customs and the inherent risks involved in playing that sport (Citron & Ableman, 2003). Injuries that typically occur during the course of participation do not warrant criminal actions or civil litigation. For example in Hackbart v. Cincinnati Bengals, the plaintiff, a defensive player of the Denver Broncos, was severely injured after a Cincinnati player struck him in the back of the head causing a neck injury to the plaintiff (Citron & Ableman, 2003). Hackbart sought recovery for lost compensation after being released, and was initially denied but had his appeal granted (Citron & Ableman, 2003). Initially the courts were reluctant to award damages due to the perceived course of action during an athletic contest. But, upon appeal, the decision was reversed and the action of the defendant was deemed to be an intentional tort. The maxim, volenti non fit injuria, which means there is no injury if done to the willing person, fits most competitive situations (Citron & Ableman, 2003). Unfortunately, sports has witnessed acts that transcend that saying and enter into the criminal arena; especially in professional hockey. Joyce (2007) points to arguments favoring outside criminal enforcement in the National Hockey League including: the frequency and magnitude of violence in the sport, the league having insufficient incentives and mechanisms to curb such violence warranting state intervention, the state having clear interests justifying such intervention by applying concepts of criminal law, and past cases justifying off-ice criminal conduct is warranted.
The first case of such violent actions in the National Hockey League occurred in 1975. Boston Bruin player Dave Forbes struck Minnesota North Star player Henry Boucha with a stick as Boucha exited the penalty box, and then slammed Boucha’s head on the ice causing permanent damage (Joyce, 2007). Forbes was charged with aggravated assault with a weapon (Joyce, 2007). In 1988, Dino Ciccarelli struck opposing player Luke Richardson twice in the head with his stick and was criminally charged (Joyce, 2007). Boston Bruins forward Marty McSorley was found guilty of assault with a deadly weapon after he struck Vancouver Canuck player Donald Brashear with a stick during a game in 2000 (Jourard, 2000). The courts found McSorley deliberately struck Brashear without Brasher’s consent (Jourard, 2000). McSorley claimed he was aiming for Brashear’s shoulder, but the courts ruled that, despite that might be in the norms of the game to instigate a confrontation, McSorley’s actions were too violent to warrant such consent. Four years later, professional player Todd Bertuzzi assaulted Steve Moore during a game that resulted in Moore being knocked unconscious and fractures of his C3 and C4 vertebrae (Joyce, 2007). Bertuzzi was subsequently charged in criminal court.
These incidents are not isolated to the National Hockey League. One such case occurred in the National Basketball Association. In Tomjanovich v. California Sports, Inc.,former Houston Rockets player Rudy Tomjanovich was sucker punched by the Los Angeles Lakers’ Kermit Washington, and suffered a broken nose and jaw, and a cerebral concussion that resulted in a severe loss of blood and spinal fluid (Citron & Ableman, 2003). Tomjanovich, who nearly died from the assault, sued the Lakers for vicarious liability and negligent supervision and was awarded $3.25 million (Cirton & Ableman, 2003). Washington was acting on a skirmish during game, but his actions could be determined an intentional tort due to his intentions of charging and striking Tomjanovich.
Violence in sport is almost a contradictive statement. The essence of sport, when played in its truest and honest sense, should not have any component of violence. Ultimately, sports is a game and a game should be competitive, but enjoyable and safe. Unfortunately, that is not the case now. Sports like football and hockey have an unnatural level of violence engrained in day to day competition. If two people were to fight on the street they would be arrested and charged. If two players in a professional hockey game fight, it is encouraged and celebrated, but no criminal charges are forthcoming, just a short trip to the penalty box. It is only when players cross the so-called accepted line of violence that criminal courts intervene. But when violence, in the way of fighting, is accepted, players may not know what that line is. Maybe it is time for the National Hockey League to take the measures put in place by other professional leagues to curb fighting in sports. The National Football League is attempting to implement measures to control the violent nature of the sport, but unfortunately players are only going to get bigger and stronger, and that violent component is central to the core of the game. It is imperative that leagues continue to implement rules and regulations that severely punish egregious and intentional violent acts. It is also imperative that the courts continue to play a role in enforcing tort law when individuals act out beyond those rules and regulations and the nature and context of the sport. Particularly in the sport of hockey, where a stick can play an extended and prominent role in such violent acts.
By Matthew Metcalf, Doctoral student USSA. Reprinted with permission.
Citron, J. & Ableman, M.. (2003). Civil liability in the arena of professional sports. U.B.C Law Review, 36, (2), p. 193-204.
Jourard, R. (2000). McSorley found guilty of assault with weapon. Retrieved Jan. 25, 2016 https://www.defencelaw.com/hockey-assault.html.
Joyce, N. (2007). Too many men on the ice? Why criminal prosecutors should refrain from policing on-ice violations in the NHL. Retrieved Jan. 25, 2016 from http://www.law.harvard.edu/programs/olin_center/fellows_papers/pdf/Joyce_9.pdf.
Morakinyo, E.O. (2008). Legal liabilities of referees for negligence during sports competition. International Sports Law Review, (7), 3-4, p. 78-90467-475.
Standen, J. (2009). The manly sport: the problematic use of criminal law to regulate sports violence. Journal of Criminal Law and Criminology, 99, (3), p. 619-642.