Sports Law Blog
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Wednesday, March 10, 2004

Should There be Criminal Liability for On-Field Actions?: At a game Monday between the Colorado Avalanche and the Vancouver Canucks, All-Star forward Todd Bertuzzi skated up from behind Avs player Steve Moore and delivered a violent sucker punch to the side of the head. The attack, in retribution for a hit Moore put on Canucks captain Markus Naslund, broke Moore's neck and gave him a concussion, one of the most serious injuries ever inflicted during a hockey fight.

As expected, the incident has caused considerable uproar, with some commentators calling for a one-year suspension of Bertuzzi. In addition, the Vancouver police has begun an investigation into the attack, and is deciding whether to bring criminal charges against Bertuzzi. But should professional athletes be subject to criminal prosecution for acts during the game?

Clearly, the answer is "not always." Hockey players routinely fight with one another, often leaving with broken noses, bloody lips or missing teeth. A batter hit by a pitch in baseball may charge the mound, trying to land a good punch on the opposing pitcher. A linebacker in football may be suspended for several games for going after an opposing quarterback's head. None of these incidents lead to criminal liability. Traditionally, only when an athlete goes outside the field of play or attacks a non-athlete (Dennis Rodman kicking a cameraman, a player going into the stands), do the local authorities step in. Fighting is seen, rightly or wrongly, as part of the game, and the players assume the risk of the game when they step onto the field.

But at some point, actions have to be seen as crossing the line. Clearly, if a player hacked another repeatedly with his bat or stick, with a clear intention to cause serious injury or death, this would not be seen as part of the game. But how much different is this than mercilessly punching an opponent? The current incident is in the gray area between "part of the game" and criminal activity. In fact, this incident only received attention because of the seriousness of Moore's injury. Had he suffered only a broken nose or bloody lip, would the Vancouver police really be investigating? But, as Vosburg teaches first year law students, you take your victim as you find them. A tortfeasor is responsible for any injuries resulting from a malicious act, no matter how unforeseen.

Hockey, unfortunately, is not a stranger to the idea of criminal liability. In 2002, Boston Bruin Marty McSorley was criminally prosecuted for a violent slash to the face of Vancouver player Donald Brashear. Up until now, McSorley received the harshest punishment in NHL history, a one-year ban, which in effect ended his playing career. In addition, he was convicted of assault in a British Columbia court and given 18 months conditional discharge (similar to probation). The prosecution was seen by many, however, as setting a dangerous precedent of taking disputes off the ice, where they belong.

On one hand, what happens on the field of play should remain on the field of play. Would Bertuzzi have attacked Moore on the street? Absolutely not. It was purely a hockey move -- you hurt one of ours, we hurt you. Leagues have numerous ways of dealing with such incidents, including suspensions without pay, heavy fines, and in some cases, banishment. However, the powerful players unions often fight such penalties, reducing their overall effectiveness, such as when Latrell Sprewell's suspension was reduced from one year after he choked his coach during a practice. In these cases, the legal system could step in and ensure that vicious attacks do not go unpunished under the guise of "part of the game." As players grow stronger and the possibility of serious injury increases, sports and the law should examine the dividing line and devise a system that protects both the integrity of the game, and more importantly, the safety of the players.


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