Sports Law Blog
All things legal relating
to the sports world...
Friday, October 22, 2004
 

Off for a week: I will be traveling for the next 9 days, and thus, will not be blogging. I am sure most people will be wrapped up in the World Series -- let's go Sox! Since I predicted Sox in 6 in the ALCS, I will predict that again. Sox wrap up the World Series, at home, next Saturday night. Will the Bambino be there?

 

Leave Your Team Gear at Home: Interesting election note in Texas -- because of the stadium initiative on the ballot, voters will not be able to wear Dallas Cowboys merchandise at polling places. Voters will be asked to cover any logos on their clothing. The relevant Texas state law, Election Code sec. 60.010(a) states:
    Except as provided by Subsection (b), a person may not wear a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election, in the polling place or within 100 feet of any outside door through which a voter may enter the building in which the polling place is located.
No word on whether employees of the W Hotel will be allowed to wear their uniforms to vote.

Thursday, October 21, 2004
 

Hamm Keeps Gold Medal: Thank goodness. The Court of Arbitration of Sport properly ruled today that Olympic gold medalist Paul Hamm will keep his gold medal. I have not yet read the full opinion (which cannot be appealed), but this quote is a good one:
    "An error identified with the benefit of hindsight, whether admitted or not, cannot be a ground for reversing a result of a competition."

Indeed.

 

Only the First Step: What an incredible ALCS. I am not a huge Boston fan, but living here, you cannot help but get sucked in. The entire city is crazy for the Red Sox. And when you combine that with an historic collapse by the hated Yankees, could you ask for anything better?

Now, let's hope that the Red Sox do not take their eye off the real prize. Beating the Yankees is nice, but this has not "reversed the curse." Only a World Series title can completely erase the Bambino from Boston baseball lore. Last year, the Yankees survived an incredible 7-game series only to come up short in the World Series to the Marlins. Both the Cardinals and the Astros are great teams that want the World Series just as much as the Red Sox.

Terry Francona cannot afford to make bone-headed decisions, like bringing in Pedro to pitch when (1) Lowe was improving as the game went along, with the 6th inning being his best by far; (2) Pedro was pitching on one day's rest; (3) the move got the crowd back into the game; and (4) Boston had a seven run lead. In my mind, you do not bring a starter into a game in relief, which is an unfamiliar situation, unless you are desperate. With a seven-run lead and a starter that is cruising, you are not desperate. But thankfully, Francona will live down his decision, unlike Torre's decisions to start Kevin Brown or bring in Vasquez to face Damon.

There are a number of great stories to read. The New York Times says that this series actually lived up to the hype, with the future uncertain for the Yankees. The Boston Globe asked: was this redemption for all previous defeats? And many just cannot believe it: the Red Sox, who have disappointed their fans for so long, finally came through.

But remember, there are still 4 more wins to go.

Tuesday, October 19, 2004
 

Terrific Speakers at Harvard University this week:

Thursday, October 14, 2004
 

Hockey's Biggest Problem: Opening night of the hockey season was supposed to be last night. Did you know that?

The answer, most likely, is no. And the disturbing thing for the NHL is not that average fans did not realize the exact opening day of the season -- very few fans know the opening days of baseball, football or basketball each year. But the worse part is that there was almost no media coverage of the "non-opener." The hockey story of the day was the fine imposed on the Atlanta Thrashers owner for mentioning the possibility of using replacement players. Contrast with the missed opening day of the baseball stoppage in 1995, complete with pictures of empty stadiums and stories about distressed fans. So, the question remains: When hockey returns, will anyone notice? More importantly, will anyone care?

 

Harvard Business School to host Sports Career Panel Today:

For those of you interested in pursuing a career in sports, the Sports Business Club of Harvard Business School is hosting a student career panel today (Thursday, October 14) from 5:00 to 6:30 P.M. in room 8 of the Aldrich Building (click here for directions to and an interactive map of Harvard Business School). All of the panelists have professional experiences in sports and are also MBA Candidates at Harvard Business School (with the exception of me, an attorney and LL.M. Candidate at Harvard Law School). It should be an excellent discussion, and if you are interested in pursuing a career in sports, and you live in the Greater Boston Area, definitely check it out.

Here is a complete list of the panelists:


Jenny Abramson
, Moderator

John Bratlien, Athlete’s Performance Gym

Scott Blackburn, Cleveland Browns

John Harper, Nike / NBA / NHL

Mike McCann, Sports Law (Maurice Clarett)

Evan McNamara, Vision Sports & Entertainment

Shirley Schneiderman, Reebok

Tom Shaffer, Banc of America Sports Securities


Tuesday, October 12, 2004
 

New Tax Bill Could Save Sports Owners Millions: Admittedly, I write very little about tax law, mostly because I don't understand it. Thankfully, Duff Wilson of the New York Times explains how one sentence in the new congressional tax bill could save the owners of professional sports teams millions of dollars:
    The measure allows owners to write off the full value of their franchises over 15 years; under current tax law, they can write off only the value of players' contracts over three to five years.

    The change might give a $2 billion windfall to pro sports owners, as bankers estimated it would add about 5 percent to the value of professional franchises, which was estimated at $41 billion over all by Forbes magazine in 2002. The actual effect will vary from team to team.

    The Congressional Joint Committee on Taxation contends that the new provision will increase taxes paid by teams over the next 10 years, particularly in the first few years.

    But Martin A. Sullivan, a former committee tax analyst, writing for Tax Notes, a nonpartisan publication, said the change would almost certainly mean that team owners would start paying less in taxes within a few years and into the future and that franchise values would rise.

    Robert Willens of Lehman Brothers in New York estimated that the Jets, purchased for $635 million in 2000, would have been worth at least $690 million if the new tax rules had been in effect at that time.

    The change affects only newly acquired franchises, but by making them more valuable in a future sale, it allows existing owners to set higher prices and borrow more money at better rates. Teams with larger television contracts are expected to benefit the most by writing off the value of those contracts against profits. Sports franchises were put under separate tax rules in 1993.

    ****

You can read my original post on this topic here. I think I explained it pretty well.

 

Congress Passes Steroid Control Act: The Senate unanimously passed The Anabolic Steroid Control Act of 2004 on Monday, passing it on to President Bush, who is expected to sign the bill into law. The proposed statute adds steroid precursors and substances such as androstenedione (andro), to the list of anabolic steroids that are classified as Schedule III controlled substances, which are banned from over-the-counter sales without a prescription.

This follows on President Bush's State of the Union address, as well as a number of congressional hearings in the wake of the Balco scandal. Major League Baseball and Commissioner Bud Selig also issued a statement, congratulating Congress on passing the bill:
    "This important legislation will help us reach our goal of zero tolerance in the battle against steroids," Commissioner Bud Selig said in a statement. "With the passage of the Anabolic Steroid Control Act, steroid precursors will be deemed prohibited substances under Major League Baseball's joint drug program. This will allow us to test for steroid precursors, just as we are currently testing for steroids, as part of our regular testing."

This seems like good news, not only for baseball and other professional sports, but for athletes everywhere. Making it harder to get these drugs will hopefully also protect high school and other amateur athletes from the temptations of performance-enhancement.

 

Beckham's Ego Gets a Yellow: David Beckham knew he had broken his ribs in England's World Cup qualifying game against Wales. He had been injured in the same way before and knew how it felt. He also knew that he had a yellow card in a previous game. So, knowing he would miss the next game because of injury, he intentionally fouled a Wales player, picking up his second yellow, which by rule, would keep him from the next contest.

It seems like a pretty clever play -- if you know you are going to miss the next game anyway, go ahead and get a second yellow, so the first one is not hanging over your head when you return.

But, unfortunately for Beckham, and perhaps fortunately for the game, his ego got the better of him. So concerned was he that fans would think him stupid for picking up a second yellow, he admitted that he committed the second foul on purpose. So, now he faces possible disciplinary action by soccer's governing body for unsportsmanlike conduct.

Beckham's quote: "I'm sure some people think that I haven't got the brains to be that clever, but this shows] that I do have the brains." Just not the brains to keep quiet about it.

Monday, October 11, 2004
 

This is not good news for hockey fans... Baseball union casts support to hockey brethren

 

Speaker Alert for those living near Harvard University:

Donald Fehr, Executive Director and General Counsel of the Major League Baseball Players' Association, and Rob Manfred, Executive Vice President of Labor Relations and Human Resources at Major League Baseball, will speak at Harvard Law School tomorrow (Tuedsay, October 12) as a guest of Professor Paul Weiler of Harvard Law School, Professor Stephen Greyser of Harvard Business School,
and Michael Vathilakis of Osler, Hoskin & Harcourt. They will speak from 2:20 to 4:20 in room 104 of the law school's Hauser Building (see interactive map of Harvard University), and then there will be a reception in room 103 of Hauser immediately following the discussion. The discussion topic is, How to Bring About Constructive as well as Peaceful Settlement of the Design of the Players. Please note: This event is not open to the media; all comments made are off-the-record. However, if you are interested in an academic discussion, please come by, as it will be great to hear from both Mr. Fehr and Mr. Mandred at the same time. If you have any specific questions, feel free to contact me.

Sunday, October 10, 2004
 

Lewis Pleads Guilty to Drug Charges; What Suspension is Appropriate? I normally stay away from criminal law news, as it is not really sports-specific. Just because a person who beats his wife or cheats on his taxes happens to be an athlete does not make it sports law news. But the case of Jamal Lewis raises an interesting question regarding leagues and the way in which they discipline their players.

Earlier this week, Ravens running back Jamal Lewis pleaded guilty to using a cell phone to broker a cocaine deal and was sentenced to four months in jail, plus two months in a halfway-house. But under the terms of the deal, Lewis will serve his jail time in the offseason. The NFL responded to this proceeding and announced it will suspend Lewis for 2 games.

Wait. 2 games? For pleading guilty to a drug offense? The NFL routinely suspends players 4 games for testing positive for marijuana, in offenses that often bring no criminal sanction and no jail time. Does this add up?

Perhaps one key distinction is the fact that Lewis's criminal activity occurred four years ago, in the summer before he began his NFL career. But at the time Lewis committed the act, he had been signed by the Ravens and was headed towards NFL training camp. So, he was an NFL player. Does the four years that have gone by make a difference? I would hope that this is not the difference, but one would have to imagine that if a player was arrested and convicted of the same crime today, the amount of the suspension would be higher. Did Lewis get a slap on the wrist because he is a star? Again, not something that looks good for the NFL.

All of these curiosities lead to the big question: what is the purpose of NFL sanctions? Obviously, a player suspended for steroid use has gained an unfair advantage and attempted to defraud the game, infractions that deserve heavy sanctions. But what Lewis did, and what Ricky Williams (allegedly) smoked, did not have any impact on the game of football. So, the purpose is not solely to protect the equality of competition.

The NFL is also concerned with the image of the game. The league knows its players are role models and wants to send a message to everyone: break the law and you will not go unpunished. This is why marijuana can draw a suspension, or a criminal infraction that produces only a suspended sentence.

But, with the Lewis suspension, the league seems to have shown where its priorities lie. Break one of our rules -- a harsher punishment will follow. Break the law and only a "show" punishment will you receive. Perhaps this is right; perhaps the league should be more concerned about infractions that will impact the actual game. But, on the other hand, maybe the NFL should pay more attention to the message such a short suspension is sending to the young fans that idolize Lewis and other NFL players.

 

Will Ricky Be Back? Ricky Williams has asked the NFL for a ruling on his situation so that he can return to the NFL. He has volunteered that he would pay back the money he owes the Dolphins if he could be cleared to play. Questions about this abound. If he does come back, will be suspended for violating the substance abuse policy? The answer almost certainly is yes. One scenario has him missing the rest of this season and returning next year. If he does return, what team will he play for? It is becoming increasingly clear that the Dolphins may not want him, especially because of the way he quit on the team by retiring so soon before training camp. And, why the sudden change of heart? Though he denies it, the most plausible response is the recent order that Williams pay the Dolphins $8.6 million, an amount of money he clearly does not have.

Hanging over all of this is Williams's potential bankruptcy, which could make him a free agent. As discussed in this earlier post, this seems to be a viable strategy under Florida law, but the NFL will do almost anything to prevent it, as it could set a dangerous precedent. Here is more from the Boston Globe.

What will happen? Williams will probably gain his eligibility this season, but not play until next. And it won't be for the Dolphins.

 

This Week's Column: Not really sports law related, but still relevant this time of year.

I would like to take a moment to thank my readers for their incredible response to last week's column. Reader Paul Boswell was so impressed he offered, "Top Drugs For You! Best Prices! No Perscription Required!" I was also invited to join in the "Law School Advisory Panel," which I can only assume is a great honor. But the most flattering response came from Ruth Maoela, who has trusted me, I suppose on the basis of my column, with transferring "US$15.0 M" from the estate of her late husband, who was a prince or an oil executive or something. She has promised me 40% of the total for helping her, which should allow me to pursue my dream of retiring at 26. So, thank you to all for the support.

Often, this column will deal with the interaction between sports and the law, and how the law affects the world of sports. But, this is Harvard - who cares what the law is? We should be talking about what the law should be. As the month of October approaches, and with it the baseball playoffs, some ground rules need to be laid down, for the health and safety of all sports fans and those that love them. So, without further delay, I give you my proposal for the Laws of October.

Law #1: Playoff sports always take precedence over regular season sports: October offers a wealth of great sporting events, but often this leads to problems. Battles for television control in these dire times have ended friendships and resulted in many "torts" being committed. In order to prevent such conflict, Law #1 promotes a clear hierarchy for televised sports. Now, those wearing "burnt orange" (so named because of the attempts to burn all evidence of this hideous color out of existence) and those that worship "Touchdown Jesus" may take offense to such a policy. They may scream that their mental health depends on changing the channel away from the baseball play-offs. Kindly suggest that they visit Best Buy and purchase a TiVo. And while they are out, can they also get some pretzels?

Law #2: If baseball is not on, football should be: Of course, postseason sports are not always on television. In fact, Major League Baseball has taken great steps to ensure that most playoff games do not begin until well after most school children have gone to bed. Thus, during the daylight hours and any time that baseball is not on, football should be. A little known clause in the ESPN/ABC deal a few years back is that during the season, there must be a football game on television twenty-four hours a day, seven days a week. This is why ESPN Classic was invented - to fill in the gaps. Sure, sometimes the game features Boise State and is played on some sort of a blue playing surface. But it is still football and so it deserves our attention.

Law #3: Every baseball fan should cheer for a Cubs/Red Sox World Series: The Cubs have already wrecked this by pulling off an incredible collapse and failing to qualify for the postseason. But as long as the Red Sox remain a viable hope to win the World Series, everyone should cheer for them. Seriously, who doesn't want to stop hearing about the Curse? With one winning streak in October, sports fans everywhere would be rid forever of the Greatest Whine in history. I know the Astros have never won a championship and the Braves fans have suffered through countless near-misses, but isn't another loss worth it if it means Red Sox fans stop crying about the Bambino?

Law #4: You cannot cheer against your friend's team just to spite him, unless that team is the Yankees: There is nothing worse than the friend who says, "Oh, you live and die with the fate of the Cardinals. Go Dodgers!" This person roots against your team mercilessly, sitting with a smug grin while you hyperventilate over the latest pitching change. Presidents have invaded countries with less provocation. So, Law #4 mandates that you support your friend's team, unless of course that team is the Yankees. A smart man once wrote that cheering for the Yankees is like rooting for the house in blackjack. In fact, you are only allowed to cheer for the Yankees under 3 conditions: (1) you grew up in New York, and thus we all feel bad for you anyway; (2) you can name one player from the 1989 team whose name does not rhyme with "fattingly"; or (3) you have recently woken up from a coma and you believe that Mickey Mantle is still playing centerfield. Any other "Yankee fan" is desperately clinging to the bandwagon and deserves to have everyone rooting against him.

Law #5: Despite what a roommate or significant other says, it is impossible to watch "too much sports": October gives us the heart of the football season, as well as baseball playoffs and the start of basketball and hockey. It is the greatest of sports months, rivaled only by January's collection of football playoffs and prime college basketball. All sports in October are meaningful and should be watched. The complaints of "too much sports" should be saved for July, when the sports-lover in your life is torn between bass fishing and the 1993 edition of the World's Strongest Man competition. But for now, sit back, relax and enjoy the great sporting events October has to offer.

 

Bryant's Accuser Must be Identified: The judge in the Kobe Bryant civil suit has ruled that his accuser must disclose her identity, because the woman's continued anonymity could be misconstrued as a prejudgement in her favor. "The parties appear as equals before the court and that fundamental principle must be protected throughout these proceedings," the judge said. "Public confidence in the results of court proceedings require that they be open to observation."

I think the judge is absolutely correct in this case. You have an absolute right to bring a lawsuit if you feel you have been wronged. But bringing a lawsuit cannot always be cost-free. There may be some consequences, including possible negative publicity. To be certain, it is horrible if this woman is receiving death threats -- but the remedy for that is to prosecute the offenders, not disrupt the judicial process. Kobe Bryant, even though famous, should have the same rights as any person potentially facing a multi-million dollar judgment.

You can read the complaint in the suit here.

 

New Study on the Increasing Liabilty for Team Doctors

Fascinating and thorough article today by Shelly Anderson of the Pittsburgh Post-Gazette on the increasing liability for team physicians, and how fewer physicians are choosing that area of practice as a result. According to Anderson, the rising cost of medical malpractice insurance and the related prospect of being sued by millionaire athletes are the most significant causes. The article also discusses how a lack of tort reform only exacerbates the problem.

Saturday, October 09, 2004
 

Red Sox Success and Crime: Correlation?

Well, no, not really. But the Boston Police Department was ready for the series sweep by the Red Sox yesterday over the Anaheim Angles and how that sweep would affect behavior on the streets of Boston. According to Heather Allen of the Boston Globe, the city invested significant resources, such as remote cameras to monitor streets near Fenway Park, to prevent riots and other criminal activity. And by all accounts, the investment was worth it, as there were no major reports of riots/violence following the majestic, two out, opposite-field, game-winning homerun by David Ortiz in the bottom of the 10th inning.

All of this sounds great, but how can any police organization prepare for what I hope (and pray) happens later this fall: The Red Sox winning the World Series? That event might signal the apocalypse, let alone riots. Well, at the very least, it would certainly make for an interesting sociological/criminological study on sports, violence, and preventative policies. It would also--and no doubt more importantly--break 86 years of utter disappointment, and make us (at least for a day or two) forget about Babe Ruth, Bucky Dent, Bill Buckner, and everyone else who has ailed us throughout the years.

Monday, October 04, 2004
 

Supreme Court Sports News: Today, the first Monday in October, marks the beginning of the Supreme Court's 2004 term. The court heard arguments in the federal sentencing guidelines case and denied cert in a number of other cases. One of these cases was Morris Communications v. PGA Tour. In that case, the 11th Circuit ruled that the PGA Tour can restrict the selling or posting of real-time scores from its events, unless the publisher purchases a license from the Tour. The Supreme Court's refusal to hear the case means that the circuit court's opinion stands.

You can read my earlier posting on the 11th Circuit opinion here. The court decided the case on anti-trust grounds, ruling that the scores are a product that the PGA Tour has a right to control. The court did not reach issues of copyright or the 1st Amendment.

 

Quick Speaker Alert for those living in the Greater Boston Area:

Jeff Jackson, a former NHL player and now a sports and entertainment attorney in Canada, will be speaking at Harvard Law School tomorrow (October 5) as a guest of Professor Paul Weiler of Harvard Law School, Professor Stephen Greyser of Harvard Business School, and Michael Vathilakis (LL.M., Harvard Law School, Class of 2004) of Osler, Hoskin & Harcourt. Jeff will speak from 2:20 to 4:20 in room 104 of the law school's Hauser Building (see map of Harvard University), and then there will be a reception in room 103 of Hauser immediately following the discussion. Jeff will discuss the NHL lockout and, more generally, how law and economics governs relations betweens owners and players. It should be great. Hope to see some of you there.

 

Quick Hits: A few interesting links to get the week started.

This page on CourtTV's website has all kinds of interesting documents related to the Barry Bonds home run ball case. There is another current dispute over Bonds's 700th homer run, but this case deals with HR 73 that Bonds hit in 2001. The site features the complaint, the verdict and a host of other documents relating to the case.

A former boxer's lawsuit against Sylvester Stallone will go on. The man contends that his name was inappropriately used to promote the "Rocky" movies.
    Wepner, a New Jersey club fighter, was plucked from obscurity by promoter Don King. He drew notice in 1975 in a punishing 15-round loss to Muhammad Ali. "Rocky," which won the Oscar for best picture, was the story of a down-and-out club fighter from Philadelphia who got a shot at the heavyweight title. Stallone played Rocky Balboa in the 1976 film.

    "Wepner contends, and Stallone does not contest, that the main character, Rocky Balboa, was based on Wepner and the plot of the first movie was inspired on the 1975 fight," the judge wrote.

The judge did throw out two other claims in the matter. The judge did not set a trial date, but advised parties to proceed with discovery. It seems likely that there will be a settlement in the case.

Saturday, October 02, 2004
 

New California Law expands Gender Equity for Community Sports

Last week, California Governor Arnold Schwarzenegger signed AB 2404, a law which seeks to ensure that Californian boys and girls play on even playing fields--and I mean that quite literally, as this law will demand that actual playing surfaces (e.g., baseball fields, hockey rinks, basketball courts) are of approximate quality for boys' and girls' teams. More generally, AB 2404 will effectively expand the requirements of Title IX--which is the primary means of preventing gender discrimination in athletic programs at educational institutions--to community athletic programs, which do not fall under the purview of Title IX. To illustrate why this state law arose, Terri Hardy of the Sacramento Bee notes that Californian girls' teams often play at dilapidated venues, while their male counterparts seem to receive preference from municipal administrators regarding where their games are scheduled.

There are 12 "fairness" factors that courts will consider in civil actions arising from AB 2404:
(l) Whether the selection of community youth athletics programs offered effectively
accommodate the athletic interests and abilities of members of both genders;
(2) The provision of moneys, equipment, and supplies;
(3) Scheduling of games and practice times;
(4) Opportunity to receive coaching;
(5) Assignment and compensation of coaches;
(6) Access to lands and areas accessed through permitting, leasing, or other land use
arrangements, or otherwise accessed through a city, a county, a city and county,
or a special district;
(7) Selection of the season for a sport;
(8) Location of the games and practices;
(9) Locker rooms;
(10) Practice and competitive facilities;
(11) Publicity; and
(12) Officiation by umpires, referees, or judges who have met training and certification standards.
Also, AB 2404 instructs courts to consider whether there is a history of unfair treatment in the community and whether the community tends to enable females to play in certain popular female sports (e.g., softball).

It will be interesting to observe whether AB 2404 impacts kids' sports in California. There is some initial skepticism. For instance, in the Hardy article, one community administrator notes that field requirements for girls' softball are different from those used in boys' little league (e.g., softball fields have no pitchers' mound), so the fields cannot be functionally shared (I don't know if that is actually true). On the other hand, it does seem rather unfair if boys often get to play baseball in modern facilities, while girls are stuck playing on old softball fields (which I assume increases the likelihood of injury). Maybe AB 2404 will at least encourage communities to more fairly outlay resources when planning future expenditures for kids' sports.

One other side note: I find it interesting that, just like Title IX--which was signed by President Richard Nixon in 1972 as an expansion of the 1964 Civil Rights Act--AB 2404 was signed by a Republican (i.e., the Governator). I'm really not sure what to make of that information. But maybe President Bush ought to mention that in his next debate with Senator Kerry (and if he does, I hope he plugs Sports Law Blog, or at least praises Greg Skidmore, a fellow Texan).

Friday, October 01, 2004
 

Hockey Fought the Law... and the law won. Below is my column in this week's Harvard Law Record. It deals with the issue of criminal liability for on-field activities, a subject I have covered a great deal on this blog.

There are certain rules of a civilized society to which everyone can agree. Rules such as "chew with your mouth closed" and "do not drop your library book in the toilet." Another rule known by most is "chairs are for sitting and not for throwing." But during a September 13th game between the Oakland A's and the Texas Rangers, Texas pitcher Frank Francisco forgot about the "no chair throwing" rule. Toward the end of the night, a brawl broke out between the Rangers players and fans in Oakland who had been heckling the team throughout the game. In the melee, Francisco grew angry at the folding chair he had been sitting on, picked it up, and hurled it into the crowd. Unfortunately for Francisco, his aim with the chair was better than his aim when pitching, and the chair struck an Oakland fan, breaking her nose.

What I have just described may be the world's easiest issue-spotter. It seems clear that Francisco, although severely punished by Major League Baseball, should also face legal liability for his actions. The fan has already filed suit in tort against the reliever and the local authorities are considering a criminal case.

But the threat of legal liability against athletes has not been limited to conduct that is blatantly beyond the boundaries of the sport. Rather, in a number of recent cases, plaintiffs have sought to bring legal action against opponents as a result of conduct occurring during an official game. In a National Hockey League game this past March, Vancouver player Todd Bertuzzi delivered a violent sucker punch to the head of Colorado player Steve Moore, a hit that caused Moore to fall to the ice, breaking his neck and giving him a concussion. The attack reminded many hockey fans of a 2002 incident, where Boston player Marty McSorley intentionally slashed an opponent across the face with his stick.

In both cases, the NHL handed out lengthy suspensions and large fines against the two perpetrators. But this was not enough for local authorities, and prosecutors filed criminal charges against both players. McSorley, who retired following his suspension, was found guilty and received an 18-month suspended sentence. Bertuzzi pled not guilty in August to a charge of assault causing bodily harm and will stand trial this fall.

Any follower of sports knows that conduct that would be considered illegal outside the arena is often perfectly acceptable on the field of play. It seems clear that tackles in football or hard fouls in basketball are not criminal acts; it seems equally certain that Francisco's chair-throwing incident is. So, where should the line be drawn? In the cases of McSorley and Bertuzzi, should criminal liability attach?

The analysis seems to begin with whether or not the action is "part of the game." If an act is acceptable in a particular sport, then all participants can be said to have assumed the risk for purposes of tort, or granted their consent in the context of criminal law. There is no legal liability when one hockey player "checks" another; these hits are acceptable parts of hockey and all players consent to such physical conduct by agreeing to play the game. But isn't fighting just as much a part of hockey? According to USA Today, there were 780 fights in the NHL last season, or about two fights every three games. Players that fight are given at most a five-minute penalty and are rarely, if ever, suspended by the league. In fact, players that fight often (called "enforcers") are routinely sought by teams as a means of protecting star players. Thus, it seems that while perhaps not condoned by hockey officials, fighting is very much a "part of the game."

Some have argued, though, that the hits by McSorley and Bertuzzi crossed the line, and were more premeditated assaults than legitimate hockey hits. But would this be the case if the opponents had not been seriously injured? If McSorley's stick had missed its target, would he have been arrested and charged with assault and attempted battery? If Bertuzzi's punch had just resulted in a black eye, would it even have made the highlight reels? The answer in both cases seems to be no.

Unlike Francisco's action, which would have been deemed wrong even if no injuries had resulted, or unlike a player who fires a handgun at an opposing player, or even unlike a baseball player who clubs an opponent over the head with a bat, the actions of McSorley and Bertuzzi were only deemed to be "criminal" because of the result that occurred. And while this may be an appropriate way to determine which crime has taken place or how severe the punishment should be for that crime, it is a poor method of determining whether or not criminal liability should attach. Rather, on-field actions should only lead to legal action when the action taken is so outrageous that it be deemed wrong and outside the bounds of the sport, no matter the consequences that result.

 

Quick Hits: Two interesting articles in this morning's Wall Street Journal. Geoffrey Norman recounts the history and unique niche of Sports Illustrated, which has been celebrating its fiftieth anniversary this year. And Matthew Kaminski talks about how the return of baseball to the nation's capital is part of an overall revitalization of the District.