It was in American football that athletic violence was first questioned on a governmental level. In 1901, six American university football players died while playing in games. The press of the day condemned the deadly violence that had occurred and demanded changes in the sport. University presidents threatened to end all collegiate contests. In 1905 The President of the United States, Theodore Roosevelt, a former collegiate boxer at Harvard University, stepped in and forced collegiate officials to change the rules of football to protect the players. He threatened to stop all football playing if the rules were not changed and implemented by the next season. Roosevelt prevailed, and American football survived its first threat.
Illegitimate Sports Violence
In contact sports players often suffer injuries. However, at what point (if any) does an injury as the result of honest play turn into an injury due to intentional and excessive use of force by a player that might subject him to criminal liability? Much of the analysis of the criminal law application in sports context comes from hockey and the Canadian courts. Currently only a few major cases appear to set a standard for prosecuting athletes for violence sorts. Where the line is drawn between acceptable (within the rules) and unacceptable (outside the rules) violence remains unclear. In 1969, Wayne Maki of the St. Louis Blues hockey team swung his stick at Boston Bruins player Ted Green and fractured his skull in a preseason exhibition game in Canada’s capital of Ottawa. Both players were involved in two fights in the same game, and both were thereafter charged with different forms of assault. Maki’s case was dismissed under the theory of self-defense, but the court refused to differentiate between sports contests and real-world violence. In the Green case, Green was found not guilty because it was held that his actions were an involuntary reflex to be part of the roughness of the game. No conviction resulted in either case, but the court noted that sports were not immune from criminal prosecution. One famous case in the United States involving the NHL followed a 1975 incident involving Dave Forbes, a player for the Boston Bruins. Forbes knocked down an opposing player and proceeded to punch him in the back of the head, and pummel his head into the ice. This was the first U.S. case where a player was criminally prosecuted for on-ice violence. Although the evidence was overwhelmingly against Forbes, he was nonetheless acquitted by a split jury decision. Alarmingly, from the time of this incident until today, the criminal court system within the U.S. has deferred to league self regulation within hockey.
Hackbart v. Cincinnati Bengals, Inc.
Though this was not a criminal case, the court discussed the involuntary reflex defense regarding aggressive contact during a sports contest. Cincinnati Bengals football player Charles Clark hit Denver Broncos player Dale Hackbart on the back of the head out of frustration after an interception. The play was over, and Hackbart was not looking when he was hit from behind. He broke three vertebrae in his neck and suffered several muscular injuries as a result. The district court stated, “The violence of professional football is carefully orchestrated. Both offensive and defensive players must be extremely aggressive in their actions, and they must play with reckless abandonment of self-protective instincts.” [Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352, 355 (D. Co. 1977), rev’d 601 F.2d 516 (10th Cir. 1979), cert. denied 444 U.S. 931 (1979)]. The 10th Circuit Court of Appeals reversed the trial court by holding that even a football player may be held responsible for injuring an opponent if he acts with the reckless disregard for the opponent’s safety. Id at p. 92
The Case of Dino Ciccarelli
In another hockey case, Dino Ciccareffi, the captain and all-time leading scorer for the Minnesota North Stars, pounded Luke Richardson in the mouth repeatedly. In 1988, a Canadian court held that Ciccarelli was guilty of criminal assault and had to serve one day in jail and pay a $1,000 fine as an example to others that such violence in hockey is not acceptable. This was the first ever jail sentence for a professional athlete for violence that occurred during a sports event. Other cases have been prosecuted, but they have been limited to hockey and have been tried mostly in Canadian courts. Ciccarelli is believed to be the first National Hockey League player to receive a jail term for an on-ice attack on another player. Id at p. 93
February 21, 2000 – Marty McSorley Incident
One of the most publicized incident of excessive violence in the modern era of hockey is that involving Marty McSorley of the Boston Bruins, and Donald Brashear of the Vancouver Canucks on February 21, 2000. After fighting and losing to Brashear early in the contest, McSorley sought revenge later in the game by trying to goad Brashear into another fight, which Brashear would have no part of. With time winding down, and his team significantly behind, McSorley skated towards Brashear from behind and slashed at his head with his stick. Brashear’s head smacked the ice, sending him into convulsions. The NHL immediately suspended McSorley for the remainder of the season. Later, he was convicted of assault and given an 18-month conditional discharge by the court.
Criminal assault occurs when one unjustifiably and intentionally uses force upon another with intent to cause injury. The crime usually involves a threat of harm, coupled with improper contact with the other person. As every fan knows, ice hockey involves considerable body contact and occasional fighting. Many consider the hits, blows and fights as a part of the game. The NHL has rules regarding penalties for such infractions. Over the years, many have been hurt in hockey altercations, but few cases have gone to criminal court. The McSorley case did.
March 8, 2004 – Todd Bertuzzi Incident
Late in the third period, while losing 8-2, Vancouver’s Todd Bertuzzi stalked Colorado’s Steve Moore down the ice holding onto the back of his jersey. Bertuzzi could be seen whispering into Moore’s ear, while he leisurely strolled behind him. When the play began to move in the other direction and Steve Moore began to skate away, Bertuzzi dropped his stick and delivered a blindsided, right handed, punch to the side of Moore’s face. Moore fell forward with Bertuzzi still on his back driving his head into the ice. Several other players quickly joined the melee by piling on top of Moore’s motionless body. Steve Moore suffered facial lacerations, a concussion, and two damaged vertebrae, which have subsequently put his professional hockey career on hold, indefinitely. Bertuzzi was immediately suspended by the NHL for this transgression, while the Vancouver police immediately opened a criminal investigation.
The legal response to this incident was so immediate that police officers began interviewing fans, players, trainers, coaches, and administrative personnel who were in attendance. On June 24, 2004, Todd Bertuzzi was formally charged by the Vancouver attorney general for assault causing bodily harm. Due to the publicity and severity of the act, along with the overwhelmingly public outcry that followed, it is speculated that all athletes in the NHL were quickly informed of the incident and the severity of the punishment that Todd Bertuzzi was facing.
Another incident involved Jesse Boulerice, who while playing in a minor league hockey game “grabbed his hockey stick at the end of the handle with both hands, and swung his hockey stick, in a baseball type swing, at Andrew Long.” Similar in substance to the McSorley incident, the victim here hit the ice and went into convulsions. However, the injuries suffered in this case were more severe than those reported in McSorley. Following the path of the NHL, the Ontario Hockey League (OHL) suspended Boulerice for a year. In addition, Boulerice was suspended from the Philadelphia Flyers minor league team (to which he was assigned) for six months. Also, formal assault charges were filed against Boulerice by Long in Wayne County, Michigan. Originally charged with assault with intent to commit great bodily harm, Boulerice was able to plea to a reduced charge of aggravated assault, no trial was held, and he was sentenced to 3 months probation. Although deterrence for players as a result of the court’s action in this case is not likely, the league suspension of one year and six months will certainly have a greater impact in that regard. Despite the noted increased prosecution indicated above, to this day, no player in the NHL or its minor league affiliates has been sent to jail for conduct in an athletic event that occurred on U.S. soil.
Over the past decade or so, the courts have begun to convict players more frequently for on-ice assault. And, where the courts initially differentiated between conduct that was incidental to the game and in the heat of the moment (Maki), with conduct occurring after the play was over (Gray), recent court decisions are now simply finding incidents that occur during the course of play to be excessively violent. Since the most common defense to excessive violence is consent, the court in Regina v. Cey, [Regina v Cey 48 C.C.C. (3d) 480 (Sask. CA. 1989)], developed a five part test to determine if valid consent exists in the context of an athletic event. They are: “(1) Nature of the game; (2) nature of the act; (3) the degree of force employed; (4) the degree of risk of injury; and (5) the state of mind of the accused.”
Certain individual or collective conduct during a sports contest would likely be prime targets for criminal charges if they occurred outside the sports arena. However, prosecutors rarely charge athletes for acts committed during a game. Many people believe that leagues themselves should regulate violence in sports. There have been several attempts at the federal level to regulate sports violence, such as proposal of The Sports Violence Act of 1980. This act would have imposed up to one year in prison for professional athletes who knowingly used excessive force during a game. However, it failed to gain enough votes. Another proposed act, the Sports Violence Arbitration Act of 1983, failed to create a sports court for excessive violence. Id at p. 91.
Internal League Controls
Violence in sports has become so prevalent that professional sports leagues and other governing bodies have had to police such activity themselves and provide punishment (i.e., penalties). In some sports, a stick or ball could conceivably be used as a deadly weapon to seriously hurt an opponent. Most spectators and prosecutors believe that such activity is just part of the game. Some scuffles and plays are so violent, however, that professional and amateur sports leagues have had to form rules that penalize players with fines and suspensions.
Hockey, for example, recognizes a variety of penalties and even a penalty box for transgressors. A player may be penalized for numerous violations, including boarding, butt-ending, charging, clipping, cross-checking, elbowing, fighting, high-sticking, holding, hooking, kneeing, roughing, slashing, spearing, and tripping.
Baseball winks at bench-clearing brawls. Pitches intended to bean the batter, will result in the pitchers ejection. Managers may be thrown out of a game for confrontations with the umpire. Football imposes penalties for roughing the passer and kicker, unnecessary roughness, holding, spearing, and tripping. These acts would constitute criminal and civil assaults and batteries but for their occurrence during a sports contest. One of the major objections to leagues controlling violent behavior is that their actions have not gone far enough. When fines or suspensions are handed down, they often have little impact to athletes who make millions for their sports prowess.
Fans and Spectators
Sometimes sports fans may have to be controlled when watching a sports contest. It is quite common for fans during the heat of a contest to become violent in the stands among each other and against sports officials and even athletes. This phenomenon is not unique to the United States. In fact, it is generally accepted that the most violent fans in the world are at soccer matches. A large number of fans have died during pre- and post-game soccer celebrations. Id at p. 93.