VIOLENCE IN SPORTS: When Should Athletes Be Subject to Criminal and Civil Penalties?

By Scott Daniels, Esq., NFL Draft Bible

Bone-crushing checks. 98 mph fast balls tossed at batters' heads. Rib-shattering tackles. Brutal flagrant fouls. What do all of these have in common? Today’s sports fanatic craves these plays more than ever.

And while immense physicality and violence are a part of many professional sports, what happens when a player goes too far in trying to make a play? What recourse does a player have when his opponent deliberately tries to inflict severe bodily harm? League imposed fines and suspensions have always been the norm, but is it enough?

It’s an important, yet overlooked, issue. Should athletes ever be subject to our criminal or civil law system for actions that resemble common law battery as opposed to aggressive play?

The answer to that question may be the most common answer out of a lawyer’s mouth - It depends.

Violence has always been a part of sport. It’s routine in many sports to engage in violence every single play. But while an athlete’s tenacity and ferociousness is always accepted, many times, a player goes beyond what is customary in that respective sport. And when that act results in a serious injury to his or her opponent, a simple fine seems unjust.

I take the position that athletes who become victims of violent attacks on the playing field should absolutely seek recourse by way of our legal system, especially if they incur an injury that prevents them from playing. While it sounds easy for an athlete to sue another, proving the case, whether criminal or civil, is a steep climb.

Many people would argue that the professional athlete is consenting to the occasional violent play that is inevitably “part of the game.” And by consenting, that person may not seek judicial relief since the consent serves as a complete defense in the court of law.

Take professional hockey for instance. Fighting is allowed and is sometimes encouraged in the sport. When a hockey player steps onto the ice, it is foreseeable that he may engage in a fight at some point during the game. It is also foreseeable that an injury may occur as a result of the fight, since a typical fight consists of hand-to-hand combat with an opponent. Therefore, the defense of consent would fully hold up in court since fighting is likely to result in injury.

So while an injury resulting from a vicious punch in a hockey fight is completely within the customary standards of the sport (although still subject to a major penalty), a hockey player crosses the line when he uses his stick to attack another player. Moreover, the victim of the attack would never consent to a potential assault with his opponent’s stick.

This is precisely where aggressive play collides with criminal culpability and civil liability.

On February 21, 2000, Marty McSorley, while playing for the Boston Bruins, brutally attacked Donald Brashear with his stick in one of the most horrific acts in sports history. With only seconds remaining in the game, McSorley picked up his stick and swung it like a baseball bat at Brashear’s head. Immediately upon impact, Brashear dropped to the ice. The arena was silent. Never before had the league seen such brutality.

McSorley was slapped with a year-long suspension and was found guilty of criminal assault with a weapon. Fortunately, Brashear recovered and is back playing in the NHL. But the aftermath of this incident raised the issue of how to handle deliberate and unnecessary violence in sports.

While McSorley clearly exhibited criminal conduct against Brashear, most cases are not that clear-cut. The biggest barrier a victim faces when deciding to sue or press charges is proving intent by the aggressor. If a pitcher hits a batter square in the head with a pitch, the pitcher could claim he was just trying to brush the batter away from the plate. Proving intent is a subjective standard and extremely hard to prove here because brushing the batter off the plate is part of the game. Even if the struck batter suffers a career ending injury, the facts would not support criminal or civil liability by the pitcher.

In contrast, McSorley’s actions certainly warranted criminal and civil action. Personally, I would have banned him from the league after what I saw. But while violence like this is rare on the playing field, athletes need to be aware of potential recourse should they find themselves in these situations.

Keep in mind that assault with a hockey stick and the bean ball are just a few examples of violence throughout the course of sports history. The great irony surrounding this topic is that today’s sports fanatics crave the violent altercations more than ever. In an era where Youtube and Sportscenter highlights glorify violence caught on film, over-aggression will always be a part of sport and although professional athletes appear to be superior beings, they are never above the law, even on the playing field.