Door Is Open for Hockey Player To Sue; But Will He?

Mar 27, 2004

As you read this, Colorado Avalanche forward Steve Moore is recovering in a Denver hospital from the injuries he suffered when he was ambushed from behind on the ice a few weeks ago by Vancouver Canucks forward Todd Bertuzzi.
Moore and his advisors may be contemplating a potential lawsuit against Bertuzzi. But don’t bet on it. Professional athletes, while they may have a case, as in the Moore situation, often shy away from court.
“Hockey players, and their families, are generally not the most litigious people around,” James F. Dial, a partner with Reed Smith’s Princeton. N.J. office, told Sports Litigation Alert. “A prime example of that is the Snyder family, who have repeatedly stated that they will not file suit against Atlanta Thrashers star Dany Heatley, whose allegedly reckless driving took the life of his Thrashers teammate, Dan Snyder.”
In the Moore case, said Dial, “Steve Moore has a younger brother, Dominic, who is a prospect in the New York Rangers organization, and so Steve might fear that a civil suit could engender bad feelings which would make things tougher for Dominic.”
Chicago sports law attorney Eldon L. Ham, who also teaches on the subject at the Chicago-Kent College of Law, has seen a similar instance on the gridiron.
Ham represented then Chicago Bears quarterback Jim McMahon when he was lifted into the air by a Green Bay Packer defensive lineman, several seconds after he had completed a pass, and pile-drived into the turf, injuring his shoulder.
“The Packers, that day, had a hit list of players that they were going to ‘pay special attention to,’” Ham told SLA. “While the case did have a weak point in that it was during the play, we thought he should have filed suit.” McMahon didn’t, according to Ham, in part because he didn’t want to create ill will.
Another factor that may discourage potential legal action, of course, is collateral source, in that Moore may have signed away his right to sue the NHL, its member teams and players in order to be eligible for various financial benefits, such as permanent disability.
While Moore may forgo a suit, there seems little doubt that, jurisdictional issues aside, he could sue Bertuzzi, and even possibly the Canucks.
Moore Could Sue Player, Team
“Although hockey players might be said to assume the risk of violent contact, there may be a difference between the violent contact that is ordinarily expected in the sport, and what might be considered a premeditated assault with the intent to cause serious injury,” said Richard T. Boyette, First Vice President of the Defense Research Institute.
In fact, all of the attorneys and professors that SLA talked to agreed that Bertuzzi’s act was “premeditated.” Noted Peter Goplerud, a sports law professor at Drake University: “The video certainly gives the impression the conduct was intentional—and it clearly is outside even the most liberal approach to the rules of the game.”
Attorney Carla Varriale of Ohrenstein & Brown in New York City added that while professional athletes do assume the ordinary risks of the game, they “don’t assume the risk of intentional conduct that is designed to injure.”
But again, the forces that be will discourage Moore from suing Bertuzzi. Jim Godes of Foley & Lardner emphasized that the players’ union will want the matter resolved short of civil litigation. Another factor, said Godes, is: “Was the punishment imposed by the NHL severe enough?”
The answer, a suspension for the rest of the season, appears to be yes, given that Bertuzzi was one of the league’s star players and that the Canucks’ optimistic post-season hopes depended in large part on him.
“The penalties imposed upon Todd Bertuzzi by the NHL are among the stiffest in its history (with the potential to be more punitive if Bertuzzi is not reinstated in time to play for Team Canada in the 2004 World Cup in September or to start the 2004-2005 season with Vancouver),” said Dial. “Given that reality, it is unlikely that Steve Moore would feel that a civil suit was necessary in order to truly punish Todd Bertuzzi.”
Team Is a Ripe Target
That, of course, leaves the team, which case law dictates, is a ripe target.
DRI’s Boyette staked out the defense’s position, noting that unless retribution was part of Bertuzzi’s job and that responsibility “was expressly or implicitly authorized or condoned” by the team, then the team would not be liable.
Goplerud added that “the key will be determining what sort of communication occurred between players and coaches and front office personnel regarding so-call retaliations and general on-ice conduct.”
Typically, plaintiffs have gone after the teams, as was the case in Rudy Tomjanovich v. Cal Sports, Inc. dba Los Angeles Lakers. In that case, the Lakers were found to be vicariously liable under Respondeat Superior as well as negligent in their supervision of the player that struck Tomjanovich. The case was settled for $2.13 million, prior to the appeal being heard.
Another relevant case was Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979), which involved Charles “Booby” Clark striking Dale Hackbart in the back of the head after the play was whistled dead. “The blow was intentional and was so far outside of the contact that is reasonably expected even in a violent sport like football that the 10th U.S. Circuit Court of Appeals thought that the issue should be decided by a jury on a theory of recklessness,” noted VerSteeg. That case settled, as well.
There may one other target available to Moore.
“Moore could also attempt to hold the (NHL) liable on a theory that violence is encouraged in professional hockey, and that his injuries were a foreseeable outcome of that ‘policy’ of violence,” said Godes.
However, Dial draws the line at that thought of the NHL being named a defendant.
“Some have seized upon the incident to bemoan the presence of fighting in hockey, but Bertuzzi’s act had nothing to do with fighting,” said Dial. “It was an assault against an unsuspecting player, and nothing in the rules comes close to allowing that.”


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