Sports Law Blog
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Friday, March 26, 2004

More on Legal Liability and On-Field Actions: A number of people have weighed in now on the issue of legal liability for actions that occur during a sports contest. Most of the arguments center on the fact that the actions are not part of a "civilized society" and would be prosecuted if they did not occur in a professional sports setting. But what is being missed is that these professional athletes assume much of the risk of their particular sports, often including violent acts that are outside the realm of normally-accepted behavior.

The Uncivil Litigator, one of those outraged, writes:

    When I play touch football or hoops at the local basketball court with my friends, do all of us have license to assault, maim and injure one another intentionally because of the "sports exception"? I doubt it. If I decided to charge someone during a softball game and knocked their teeth out, do you think the police would refuse to arrest me? I doubt it. Why, then, should professional athletes get away with these actions? Because they're rich?

The answer to this question is that for the professional athletes, it is part of the game. The assumption of risk doctrine states that a participant in an activity in which there is contact or a chance of injury assumes the risks normally associated with that activity. Now, in little league and recreational sports, fighting is not normally associated with the activity. In fact, fighting is strictly prohibited and in many cases results in banishment from the league. Thus, someone injured in a fight could most likely bring suit, claiming that he did not assume the risk of being hurt in that manner.

However, in professional hockey, fighting is considered part of the game. Teams have enforcers, referees allow players to brawl for a minute or so before interfering and fighting in most cases is met with only a minor penalty (the same as tripping). In very few cases will a fight result in a player's ejection from a game, and in even fewer instances will it result in a suspension. This means that the league sanctions the practice, and in some cases, even encourages it (as it puts people in the seats). Thus, when professional hockey players skate onto the ice, they assume the risk of certain injuries associated with fighting, hard checks and other similar conduct.

OK, but even if you buy this, Bertuzzi's hit was clearly outside the bounds of normalcy, even for hockey, right? The Sports Litigation Alert, Vol 1, issue 3 states:

    "Although hockey players might be said to assume the risk of violent contact, there may be a difference between the violent contact that is ordinarily expected in the sport, and what might be considered a premeditated assault with the intent to cause serious injury," said Richard T. Boyette, First Vice President of the Defense Research Institute. . . Attorney Carla Varriale of Ohrenstein & Brown in New York City added that while professional athletes do assume the ordinary risks of the game, they "don't assume the risk of intentional conduct that is designed to injure."

But how outside the norms of hockey is it, even if there is intent to injure? Hockey players routinely hit one another in a manner that can only be seen as intending to injure, even if only to cause temporary pain. Even in the Bertuzzi case, the punishment the NHL handed out, while severe, was not what one might expect from an incident so outside the bounds of normalcy. And let us all be honest with ourselves. If the punch had just resulted in a broken nose, would anyone even be discussing this hit? In a game earlier this week, Dallas goaltender Marty Turco hit Edmonton player Ryan Smith in the face with his stick. This was not a poke, either -- it was a swinging motion that looked directly aimed at Smith's face. Turco's suspension for this "assault with a deadly weapon" -- 4 games. When hockey players go onto the ice, they assume the risk of many violent acts because they are part of the game. The NHL has all but said so through the meager punishments it hands down for those few hits that actually do cause injury.

The outrage is understandable, especially when a tragedy occurs. But the blame, and the liability, should not rest with the players. The league, in permitting this violence to occur, has created an environment where players assume the risk of being involved in a fight, violent check or retaliatory strike that would be deemed criminal or tortious in any other environment. If legal liability is to occur, the activity must first be shown to be outside what is expected, and in some cases even anticipated, in the sport.

Update: In the comments section, the Uncivil Litigator correctly points out that the assumption of risk doctrine applies only in tort law, and not for criminal prosecutions. My argument is not premised on actually applying the assumption of risk doctrine, but rather that the doctrine helps determine what should be criminalized and what should not be on the field of play. Tackles in football are not assault because they are "part of the game." Assumption of risk helps determine what is "part of the game" and what is not.


Is this outlined somewhere in the rules of the NHL or are they unspoken or unwritten rules?

Is the NHLPA involved?

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