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Friday, March 11, 2011
Should Zdeno Chara be Charged with a Crime?

If you haven't seen Boston Bruins defenseman and captain Zdeno Chara's hit on Montreal Canadian left wing Max Pacioretty from earlier this week in Montreal, here it is:

Pacioretty, who was taken off the ice on a stretcher, suffered a fracture to the 4th cervical vertebra (which is in the middle of the neck) and a severe concussion. Doctors have said that there is no timetable for Pacioretty's return. Given the severity and location of his injuries, it seems likely that the 22-year-old Pacioretty will be out for quite a while and his career may be in jeopardy.

While Chara received a five-minute major penalty and a game misconduct, the NHL, after reviewing the incident, declined to impose an additional penalty. Here was NHL's vice president of operations, Mike Murphy, on the league's decision:
After a thorough review of the video, I can find no basis to impose supplemental discipline. This hit resulted from a play that evolved and then happened very quickly -- with both players skating in the same direction and with Chara attempting to angle his opponent into the boards. I could not find any evidence to suggest that, beyond this being a correct call for interference, that Chara targeted the head of his opponent, left his feet or delivered the check in any other manner that could be deemed to be dangerous.

This was a hockey play that resulted in an injury because of the player colliding with the stanchion and then the ice surface. In reviewing this play, I also took into consideration that Chara has not been involved in a supplemental discipline incident during his 13-year NHL career.
The league's decision to not impose an additional sanction on Chara has prompted sharp disagreement from one of its sponsors, Air Canada, which is threatening to pull its sponsorship of the league.

More of concern to Chara, the Montreal police are now investigating whether Chara committed criminal assault, which under Section 265 of the Canadian Criminal Code, refers to intentionally harming another person (so in theory, criminal assault happens all the time on NHL rinks).

Richard Weir of the Boston Herald interviews several persons for a story today on whether Chara should be charged with a crime. Here is an excerpt:

“As long as there’s a sense that it’s part of what happened in a hockey game — it is a violent game, like a football game, terrible things happen — it’s highly unlikely a prosecutor would choose to intervene,” said Alfred Yen, who teaches sports law at Boston College School of Law. “I think only the situation where a prosecutor would be likely to intervene is if somebody, after the whistle blows and play is stopped, and runs up to somebody and just whacks them. That would be different.”

Mike McCann, who is also director of the Sports Law Institute at Vermont Law School and is the legal analyst for Sports Illustrated, said prosecutors in the States usually defer to professional sports leagues like the NHL to mete out punishments in cases that leave athletes marred with concussions or other potential career-ending injuries.

“If you look at Matt Cook and the hit he put on (Bruin) Marc Savard, that was worse,” McCann said, adding that Pittsburgh police passed on charging the Penguins forward. . . .

Noting that Canadian law requires intentional conduct as the basis of an assault charge, McCann commented, “You could argue that a fight is more intentional.”

To expand on my comments, I do think there are some hockey hits/slashes that are so dangerous and intentional that they warrant criminal sanction. The slash by Marty McSolrey on Donald Brashear from back in 2000 is a good example.

But as I see it, Chara's hit seems awful not for its dangerousness or intent, but rather because of the unexpectedly awful injuries that resulted from it - almost like a egg-shell case.

I think if Chara can be prosecuted for what he did, then the NHL might have to change their rules on physical contact -- and maybe that would be a good thing, but that would have to be debated. We might also see NHL players, cognizant of legal consequences for inflicting physical contact on other players, adopting a less physical style of play, with less checking and less fighting.

Update: My research assistant Adam Zebryk makes a very good point: Could the Belle Centre's design have in any way contributed to Pacioretty's injury? All NHL rinks have the same ice surface dimensions - 200 feet long by 85 feet wide - but they vary in other ways, including the type of glass and curvature of glass. I have no idea if the glass type/curvature mattered here, but maybe it played a role as Pacioretty did crash into the glass.


Having now seen it, I'm inclined to agree with your conclusion.

The only question that comes up is whether there is deliberate jamming the body and elbow to head as they reach the point where the glass goes higher.

Would hate to be the prosecutor trying to try it (unlike, say, McSorley or Todd Bertuzzi, the latter of whom should have been banned by the NHL).

Blogger Ken Houghton -- 3/11/2011 11:28 AM  

I saw the video of the check and it seems that it was the location of the hit that did the damage. To answer the question, the plexiglad and boards do vary from arena to arena, but over the last 15 years newer arenas have opted for "harder boards" that do not give as much as those found in older arenas. The lack of flexibility, plus the increased size of players, may contribute to the seriousness of the injury. My solution (which would never happen) would be to widen the rinks to international size, 200 X 100, rather than 200 X 85.

Blogger Mark Conrad -- 3/11/2011 10:39 PM  

It'll likely not happen, Mark. Not only that, Chara did it on purpose and everyone who knows hockey knows that. Yes, the location of the hit was crucial--just the way Chara likes it.

Blogger sportslawyer -- 3/12/2011 8:25 AM  

Torts study case isn't it? I guess it all comes down to the wider notion of acceptable and expectable behavior in the context of the game. According to the images, there seems to be little in Chara's actions to suggest that he's done something outside the normal conduct in a game, although it was in breach of the rules and therefore sanctioned.

If this were to go to court, reckless disregard would be hard to press given the nature of the game and consent would obviously play a part, I guess.

Great post once more. Take care

Blogger LCN -- 3/14/2011 6:12 AM  

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