By James Landry
A growing concern for sport managers and other administrators is the increased violence between players on the field of play. Athlete versus athlete violence during play has always been a complicated area for prosecution because it is difficult to decipher what is an extraordinary use of aggression from what is simply “part of the game.” Recent sporting events, however, make it increasingly difficult to ignore violence in sports. This delicate situation has placed a particular strain on sport managers who must consider what is in the best interest of their players, the victims, and the respective leagues.
Several key legal cases have attempted to control violence in sports. The first major case of importance was Hackbart v. Cincinnati Bengals (1979). The plaintiff, Dale Hackbart, sued the Cincinnati Bengals and Charles Clark for injuries sustained when Hackbart received an illegal block to the back of the head from Clark. The trial court ruled in favor of the defendants based on prior consent and assumption of risk defenses. The court felt that football was such an excessively violent sport that general tort principles did not apply during the course of a game (Hackbart, 1977). The appellate court, however, reversed this decision stating that the recklessness standard does exist, and that a professional football player may be held liable for injuring another player if his actions do not constitute normal or legal actions consistent with the game of football (Hackbart, 1979, p. 524-525).
Violence has been especially difficult to control in hockey. Fistfights are not only considered a part of the game, but fans encourage these fights. Recent incidents in hockey, though, have clearly crossed the line from being a “part of the game,” even by the more liberal standards typically exhibited in hockey. In 1988, Dino Ciccarelli was found guilty of assault for an attack on an opponent during a hockey match. Ciccarelli hit defenseman Luke Richardson with his stick. Ciccarelli was the first professional athlete to receive jail time for an in-game incident, yet this jail time was considered to be little more than a glorified autograph session (Katz, 2000). Another recent hockey case in October 2000 resulted in the conviction of Marty McSorley for using his stick to hit another player in the head. Most recently, on March 8, 2004, Vancouver Canuck forward, Todd Bertuzzi, blind-sided Steve Moore of the Colorado Avalanche with a punch to the side of the head and then a pile-drive to the ice. As a result of Bertuzzi’s violent act, Moore suffered three broken vertebrae in his neck and a concussion. Bertuzzi’s suspension resulted in a loss of $500,000 in pay, and his team was fined $250,000. The criminal case against Bertuzzi terminated after the court accepted his guilty plea for assault and sentenced him to a year of probation and community service (Barry, Fox & Jones, 2005).
These incidents show an increasing need for sport managers to control the violence that occurs in sports. Several theories exist concerning how violence in sports should be handled and how punishments should be deployed. Many in the legal community believe that an appropriate action is to use criminal law to prosecute athletes whose violence crosses the line. Most in the athletic community, however, feel that the respective leagues are best suited to handle the violence. These individuals argue that the leagues have a better idea how to interpret what is an excessively violent act versus what is just being aggressive in the context of the respective sport. These individuals are also concerned that by criminally punishing acts that are perceived as excessively violent, the integrity of that particular sport will be damaged (Karon, 1991).
Many who argue for legal sanctions contend that legislation is necessary to bring a consistent approach to handling the increasing violence in sports (Melnick, 1990). To this point, however, it has proven difficult to author a bill that comes close to a viable solution for this problem. In 1980, Congress proposed legislation to amend Title 18 of the United States Code to impose criminal sanctions on players using “excessive violence during professional sports events (Hicks, 2001).” It is believed that this bill failed largely because the executives of the professional sport leagues strongly opposed the bill. These executives felt the legislation was more vague and inconsistent than their own and, therefore, the leagues should continue to be the watchdogs of their respective sports (Hicks, 2001). The Sports Violence Arbitration Act of 1983 was another attempt at legislation that proposed a “sports court” to handle the violence in sports (Samson, 2005). This bill, however, was similar to previous federal legislation, and was also unsuccessful because of perceived inconsistencies (Samson, 2005).
In a case of sports violence, three claims exist under civil law that allow a plaintiff to sue a defendant: 1) intentional tort, 2) recklessness, or 3) negligence. Juries, however, have proven more willing to award damages under the recklessness theory than on the basis of intentional tort or negligence. Negligence is difficult to prove because it is tough to determine whether the defendant breached the reasonable standard of conduct that all players must use in similar circumstances. Actions brought under an intentional tort are rare because consent is often the major issue, and consent becomes blurred within the sports context (Barry, Fox & Jones, 2005). The courts have used the recklessness standard in such influential cases as the previously mentioned Hackbart v. Cincinnati Bengals, Inc. (Hicks, 2001). This standard has been defined as “conduct which falls somewhere between an intentional act and a negligent act (Barry, Fox & Jones, 2005).”
Athletes who have been a victim of sports violence often face a variety of challenges trying to bring a lawsuit against a fellow player. For one, the plaintiff faces the possibility that fellow players will shun him for breaking the “macho code” whereby disputes among players are settled “on the field” (Barry, Fox & Jones, 2005). One writer in the potential Bertuzzi vs. Moore case, for example, specifically stated that “if Moore sues, he will be ostracized” and “he would be blackballed” by fellow players, coaches and team owners, thereby jeopardizing his own career (Samson, 2005). Other challenges for potential plaintiffs include the increased likelihood of an affirmative defense and possible team sanctions against the plaintiff (Samson, 2005).
Although civil judgments with a monetary reward have been somewhat successful, criminal prosecutions have been extremely difficult to prove (Barry, Fox & Jones, 2005). On the rare occasion that a criminal suit is brought against a fellow athlete, the plaintiff is rarely successful. Even when the plaintiff is successful, the punishments imposed on the defendant are usually minimal. In the Bertuzzi case, for example, Bertuzzi was allowed to plea bargain to only one year of probation. (Samson, 2005) Part of the difficulty in prosecution, as previously mentioned, is that it is difficult to decide at what point an aggressive play turns into an excessive act of violence. Moreover, it is challenging to prove the defendant’s intentions beyond a reasonable doubt (Barry, Fox & Jones, 2005), and the consent of the plaintiff may still be challenged (Barry, Fox & Jones, 2005). The line is often blurred between what is considered foreseeable in a sport and what crosses the line into a criminal act of violence. Should Steve Moore, for instance, have expected the retaliation for his prior actions, and, if so, were Bertuzzi’s actions still excessively violent? According to Barry, Fox and Jones (2005), it becomes an unclear issue because of several factors, including rivalries between the teams, the atmosphere of the stadium or the types of players involved, and the foreseeable nature of sports violence.
Perhaps the most consistent legal trend is to allow the professional leagues to attempt to control the violence and hand out punishments. Typically, this league control results in suspensions and fines against offending players (Barry, Fox & Jones, 2005). The professional league representatives believe these suspensions and fines are more suitable than court punishments because the league representatives are able to determine whether a player’s conduct “crossed the line” versus whether the act was a reasonable part of the game (Barry, Fox & Jones, 2005). Additionally, the leagues are capable of dispensing punishments more quickly than the court system (Barry, Fox & Jones, 2005). In the recent major violence cases in the NHL and NBA, for instance, players involved were punished within a couple of days of the incidents (Samson, 2005). Critics argue, however, that leagues administer punishments within the context of their own best interest rather than the best interest of the victim. These critics further contend that by allowing the leagues to self govern sport violence cases, victims will be unable to receive monetary damages for the incident. Moreover, some wonder whether leagues can be truly impartial when leagues often profit from the violence in sports (Barry, Fox & Jones, 2005).
Deciding how to handle violence within sports is clearly a complex issue with no easy solution. Managers are, and will continue to be, faced with this challenge. They will likely play a role in providing suggestions for punishments, or they may even be responsible for dispensing the punishments. In order to be successful, these managers and other administrators must balance the exceptionally difficult task of maintaining the leagues best interests and quieting critics by administering a punishment that is justifiable to the victim. It is only through this balance of concern for the league and the victim that all parties involved will feel justice is served.
References
Katz, J. H. (2000). From the penalty box to the penitentiary – The people versus Jesse Boulerice. Rutgers Law Journal, 31, 833-872.
Hicks, W.M. (2001). Preventing and punishing player-to-player violence in professional sports: The court system versus league self-regulation. Journal of Legal Aspects of Sport, 209-224.
Barry, M.P.; Fox, R.L., & Clark, J. (2005). Judicial opinion on the criminality of sports violence in the United States. Law Journal of Sports and Entertainment Law 15.1
Karon, D.K. (1991). Winning isn’t everything, it’s the only thing. Violence in professional sports: the need for federal regulation and criminal sanctions. Indiana Law Review, 25, 147-163.
Melnik, K. (1990). Giving violence a sporting chance: A review of measures used to curb excessive violence in professional sports. The Journal of Legislation, 17-23.
Samson, C. (2005). No time like the present: Why recent events should spur congress to enact a sports violence act. Arizona State Law Journal, 949-972.
Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Col. 1977).
Hackbart v. Cincinnati Bengals, Inc., 601 F.3d 516 (10th Cir. 1979).
The Sports Violence Act of 1980, H.R. 7903, 96th Cong. (2d Sess. 1980).
