By: Aman Rastogi, Jindal Global Law School (India)
Introduction
Imagine while watching the 2017 NBA finals game between the Golden State Warriors and Cleveland Cavaliers, Kevin Durant in the middle of the game punches Lebron James. This conduct is unsportsmanlike, but how will Kevin Durant be punished? An act that is performed while participating in a sport can be subject to either civil law or criminal law, and participation in a sport will not automatically exempt the athlete from facing potential criminal liability. It is traditionally justified that rough play is a major part of the game and that an athlete cannot perform with the fear of criminal sanctions ruling over their head. Therefore, some contend, there should be an exemption for violent acts taking place on the field from criminal liability. However, athletes are role models for future generations, and therefore they should be subject to the same moral standards—if not more stringent ones. Imposing criminal liability on an athlete sends a message that no one is above the law and that any kind of violent behavior will not be tolerated in a sport.
A large number of athletes play sports under a recognized sporting federation. Those federations have established rules regarding whether an act that took place during a game was beyond the limits of appropriate behavior (and therefore whether the athlete should have criminal or civil liability).[1] However, any league sanction that an athlete might face would at worst be a fine or a suspension. Only in rare cases will the act be subject to the possibility of criminal prosecution. Acts of violence are seemingly treated in a completely different manner because they are on the field, as if there was a protective shield for athletes in terms of sanctions.[2] Nevertheless, the large number of injuries combined with the increasing number of fee arrangements has led more and more athletes, when injured, to pursue civil remedies. Injuries could also be prosecuted under criminal law, if the incident meets certain requirements.
In tort law, a plaintiff may sue a defendant for an assault or battery while the same defendant might be charged by the government for criminal assault or battery. For each alleged criminal act, the state must prove that the act occurred (actus reus) which violated a federal or state statute and that the defendant had the intent to commit such act (mens rea).[3] In a criminal action, the state prosecutor must convince a jury beyond a reasonable doubt that the athlete committing the crime was guilty, while civil cases only require the preponderance of the evidence to be successful.
Violence in sports raises the issue of whether a violent act committed on the field should be handled by the sports league or the justice system. Currently, the only solution is punishment by the sports league itself, which is an insufficient deterrent. Therefore, this article argues that legal punishments should be established.
This article first examines the role of consent in sports. It then turns to various laws that interact with sports such as civil law, league laws, as well as criminal law, and their respective effects on deterring violence in sports. The article concludes by suggesting that a resolution to sports violence is available through the interplay of civil and criminal law.
Civil Law
In violent sports cases, the main claim is for assault, where a plaintiff brings a civil lawsuit against a defendant with the intention of recovering any monetary damages caused to them by the defendant’s action. This is different from criminal law, where a prosecutor commences a lawsuit against the defendant with the intention of deterring future unlawful behavior by sanctions of community service, probation, or jail time, depending on the severity of the assault. The chances of a defendant being found guilty are higher in a civil lawsuit due to lower standard of evidence necessary to succeed in a case. Under civil law, the three different claims that a plaintiff may make when suing a defendant are intentional tort, negligence, and recklessness.
Negligence is established through different elements. First, the defendant must owe the claimant a duty of care which is just, fair, and reasonable. A duty of care establishes that an individual, while performing an act that may cause injury to others, must adhere to a standard of care that is reasonable. Second, the defendant must have breached that duty. Third, the breach must have caused the claimant loss. (This loss extends to pain, suffering, and loss of amenity resulting from a sporting injury.) Fourth, the breach must have caused the loss suffered. Fifth, the loss must not be too remote, in the sense that there must be some connection between the loss and the negligent action that took place (or that that loss was foreseeable). Lastly, the defendant must be unable to establish a successful defense to the claim. However, in sports, the duty of care that an athlete owes another athlete is complicated due to the issue of consent.
Athletes, when participating in a sport, consent to an inherent risk of negligently-caused injuries. Therefore, a higher threshold than that of the ordinary claim of negligence must be met. Both athletes are conscious of the type of injuries that can normally result from the sport, so, for an injury to be actionable, the injury and the conduct must be beyond the accepted bounds of play because the ordinary injury would be consented to under the maxim volenti non fit injuria—the idea that no injury can be done to a consenting party.[4] Despite this, there are examples of suits that met this higher threshold.
In the case of Nabozny v. Barnhill,[5] the Appellate Court of Illinois gave a test for this higher than negligence threshold which considered several factors before concluding whether the violent conduct of an athlete was part of the game. These factors included whether the act took place while the game was going on, the type of play involved, the rules of the sport, the level of skill, and the nature of the competition.
The implicit consent doctrine has made the claim of negligence irrelevant in sports. The minimum standard of liability for sports injury cases is instead one of recklessness. A person acts recklessly when they consciously disregard a substantial and unjustifiable risk that harm will result from their conduct. In other words, reckless action occurs when the person takes a risk knowing that it can cause injury to another and still decides to do the action. The person’s disregard must involve a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.[6] The concept of recklessness therefore falls in between an intentional injury and a negligent injury.
Take for example an injury that took place during a game between the Cincinnati Bengals and the Denver Broncos in 1973. The injury occurred when Charles Clark hit Dale Hackbart on the back of his skull with his right forearm, fracturing Hackbart’s neck. Hackbart filed a civil lawsuit against the Cincinnati Bengals and won the case, with the Tenth Circuit Court of Appeals holding that Clark “disregarded Hackbart’s safety and breached the duty of care he owed Hackbart.”[7] This decision demonstrates that an athlete may have a valid cause of action against another athlete if the injurer acted with recklessness on the playing field even if they did not intend to cause injury.
As compared to criminal lawsuits for excessive sports violence, which generally do not succeed, civil lawsuits have proven successful. For example, when Kermit Washington punched Rudy Tomjanovich, he was punished by a suspension for 60 days without pay and a fine of $10,000. Tomjanovich returned to the NBA the next season and also filed a civil lawsuit against the Los Angeles Lakers. Eventually, the jury awarded him more than $3 million in punitive and actual damages.
An injured athlete therefore may bring civil claims of intentional tort, recklessness, or negligence against another athlete, which might help to reduce the amount of excessive sport violence that may occur. However, in reality, these acts of excessive sports violence continue to occur due to the lack of proper deterrence.
Laws of the League
Sports leagues use fines and suspensions to deter excessive violence. A league is able to punish a player through contract law in the form of the player’s contract, the league’s constitution, and its bylaws as well as collective bargaining agreements. Further, the misconduct of the player decreases ticket and merchandise sales due to a loss of good reputation, causing loss to the league. This enables them to punish a player through property law. In theory, leagues are also effective because they are publically accountable: professional athletes garner media attention and any misconduct is scrutinized intensely by the public. Leagues are also uniquely positioned to determine whether an athlete’s conduct was reasonably foreseen or if it was against the rules of the game. Lastly, they can penalize an athlete faster than a court could.
League commissioners have the power to deal with sports violence as they are supposed to promote the “best interests of the game.” The commissioner derives his or her power from the league constitution and bylaws which provide them with the power to punish athletes for acts outside the scope of play. They also derive power from individual player contracts and the league’s collective bargaining agreement. For example, a standard NBA player’s contract contains a clause for good character. A typical NFL player’s contract, similarly, contains an integrity clause which allows a team to terminate a player’s contract in cases where the player’s actions are detrimental to public confidence in the league or the integrity and good character of the player.[8] Under these contract clauses, the commissioner can impose punishments on players for any contravention. Punishments range from fines to suspension or even expulsion from the league. However, the commissioner’s powers are limited by the league constitution as well as its collective bargaining agreement.[9]
There are a few cases in which the commissioner’s authority has been challenged in court. In Molinas v. NBA,[10] the Southern District Court of New York upheld an indefinite suspension of Fort Wayne Pistons player Jack Molinas for gambling on his team. The court reasoned that the elimination of gambling was in the best interests of the game, and therefore the punishment was justified.
The problem with a league’s punishment is that league sanctions are not considered to be harsh enough to act as deterrents and do not help to send the message that excessive violence will not be tolerated. Under the NBA rule book, a player who punches someone, whether it connects or not, will be given “a fine not exceeding $50,000[,] and/or suspension may be imposed upon such player(s) by the Commissioner at his sole discretion.”[11] However, consider Lebron James of the Cleveland Cavaliers who earned almost $31 million in the 2016-2017[12] season alone without any endorsement contracts. This fine of $50,000 will be worth nothing to him. Furthermore, any suspensions without pay will barely affect an athlete either. Take the case of Carmelo Anthony who was suspended by Commissioner Stem for fifteen games without pay for his role in a fight at Madison Square Garden. Anthony’s lost salary amounted to $640,096.50; in that season, he earned $4.69 million. This would barely be a deterrent.[13] One potential method that could help prevent sports violence is to increase fines based on the athlete’s salary, the severity of the violence, and the sport itself.
However, increasing suspensions or fines is an imperfect solution for preventing violence in sports. Leagues have a biased financial incentive when punishing athletes because their goal is to keep fan interest in order to protect their revenue stream (as well as that of the team owners). If the league punishes a player with fines and suspensions, it hurts the player, the team, and the league’s reputation which can affect merchandise and ticket sales. As a result, smaller suspensions and fines are usually given to prevent the team and the league from losing any money; the money that is fined from players and coaches go to charities selected by the league.[14] A stricter mode of punishment is required for athletes who commit excessively violent acts.
Criminal Law
Athletes have sometimes been prosecuted for violent acts during sporting events. There are a few factors that limit the viability of criminal cases; one is the doctrine of implied consent which will be examined later. Another is the distinction between aggressive behavior in sports (such as a tackle) and excessive violence (such as a punch thrown during the game). The distinction between aggression and violence during is important to understand because some aggressive contact is necessary (and therefore legal) in sports. For example, tackling is an integral aspect of professional football.[15] There is, however, a distinction between contact which is necessary and contact that is not related to the game itself. Contact that is not related to the sport would be considered as violence and should be criminally prosecuted.
Such acts of violence can be criminally prosecuted as assault and battery, which relate to excessive physical contact between parties. The Model Penal Code defines criminal misconduct and divides criminal assault into simple and aggravated assault.[16] Battery can either be consolidated with assault or provided for separately depending on jurisdiction. In California, battery is defined as “any willful and unlawful use of force or violence upon the person of another.”[17] Convicting an athlete for assault or battery is quite difficult because the prosecutor must prove that there was some intent or recklessness. Unlike with violence outside a sports stadium, where it is not normal for people to tackle and hit each other with sticks, these acts are consented to in sports such as football or hockey. This is recognized as the implied consent doctrine, where athletes voluntarily assume certain risks of injury while playing a sport. However, violence in sports may still go beyond what is acceptable under the implied consent doctrine and each case of sports violence must be assessed separately. An athlete’s consent should not allow another athlete to injure him or her without facing criminal liability.
American case law on sports violence has been influenced by Canadian courts, which have applied the implied consent doctrine but limited it to foreseeable sports injuries. One example of when the implied consent doctrine was not applied was in the case of State v. Floyd,[18] where a basketball game broke out into a fight after play had stopped. Floyd was charged with assault but argued that the court should apply the doctrine of implied consent since the fight broke out during the game. The Iowa Court found that, because the game had stopped when the fight broke out, the victim could not have consented as the fight was not a foreseeable aspect of the sport.
The case of People v. Freer[19] highlights this distinction. There, the defendant received a punch when he was tackled during a game of football. The punch was covered under the implied consent doctrine as it took place while the game was going on. However, the defendant punched the other athlete back after the play was over. The defendant’s punch was considered to be outside the scope of the implied consent doctrine.
In addition to this precedent, §2.11 of the Model Penal Code (a standardized codification of criminal laws adopted by many states) reads, regarding the implied consent doctrine:
“(2) Consent to Bodily Injury: When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:
… (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic competitive sport or other concerted activity not forbidden by law.” [20]
The Model Penal Code, just like court precedents, specifically allows for a defense of sports-related contact that was reasonably foreseeable. Therefore, the implied consent doctrine allows for meaningful checks on the application of criminal charges such that the threat of criminal charges won’t hurt the quality of the game.
The doctrine of self-defense is another hurdle for prosecuting sports violence. Conduct which falls within the implied consent of the sport is not considered as the initial aggression for the purpose of self-defense and a violent response to this conduct would be the initial aggression.[21] For example, a tackle, albeit rough, is part of the game and will not be considered violent. A punch in response to this tackle will be considered violent and the initial aggression. In the Canadian cases of Regina v. Maki[22] and Regina v. Green,[23] two players of opposing teams, Maki and Green, got into a fight. Green hit Maki with a stick on his head, and Maki hit Green back which resulted in Green fracturing his skull. Maki was acquitted on the doctrine of self-defense. Nevertheless, the court did note that acts in sports leagues do not make players immune from criminal liability.
Another problem with prosecuting athletes is the high burden of proof required to show the mens rea of the accused. Moreover, some worry that athletes will not compete at full potential due to the fear of criminal sanctions; athletes shouldn’t fear prosecution as long as their behavior is within the rules of the sport, however. Further, just as in normal society, any person who breaks the law is be subject to prosecution. In sports, too, any athlete who breaks the rules of the game should be subject to prosecution as well—especially since sports are such an important part of American culture.
An additional problem is that penalties imposed on offending athletes are ineffective. For example, in the Ciccarelli case,[24] a hockey player named Dino Ciccarelli from the Minnesota North Stars hit Luke Richardson of the Toronto Maple Leafs with a stick while the game was going on. While he was promptly ejected from the game and given a suspension of ten games, he was also criminally prosecuted. His punishment, however, was only a $1000 fine and one day in jail for assault, which can hardly be considered as a daunting punishment.
Similarly, in the McSorley case,[25] Marty McSorley of the Boston Bruins hit Donald Brashear of the Vancouver Canucks on his head with a hockey stick, giving Brashear a Grade 3 concussion. McSorley was suspended for 23 games, losing about $100,000 in pay. The judge however gave him a conditional discharge of 18 months instead of sentencing him to jail for 18 months as is the Canadian law for assault, thereby showing how the judgment was soft on the athlete. In the case of Bertuzzi, Bertuzzi punched Moore on the side of the face, causing serious damage, including a concussion and two damaged vertebrae. Bertuzzi was subject to suspension from the NHL, a criminal charge for assault,[26] and also a civil lawsuit which ultimately resulted in a settlement between Moore, Bertuzzi and the Vancouver Canucks, the team that Bertuzzi played for.[27]
All three of these cases mentioned above showcased an interplay of civil and criminal law in them. However, criminal prosecution was not a sufficient deterrent because the players who were criminally prosecuted returned to the hockey rink right after serving their sentence. This cannot be termed as a sufficient deterrent for violent behavior. Proper criminal sentences need to be given to the athletes to prevent them from doing these actions again.
Interplay
In sports, violence is frequently addressed by equity-based penalties rather than deterrent-based penalties. Think of common sports: a foul results in free throws in basketball, free kicks in soccer, or loss of yardage in football. This might be a factor in why violence in sports has increased. Some extremely violent crimes might result in a suspension of the player, which would be a deterrent, but no action would be taken off the field by a court.
Civil law is equity-based; its main motive is to restore fairness, while criminal law is deterrent-based, with the goal of preventing deviance. A system that allows for deterrence is not seen as rehabilitative and a system that is rehabilitative is not seen as deterrent. Neither rehabilitation nor deterrence can themselves be a complete system. A system should therefore consist of a mixture between equity- and deterrent-based penalties. This is based on the fact that athletes, when committing violent crimes that go against the spirit of the game, should be punished not as athletes but as regular people who have committed violent crimes. Therefore, the athlete should not just face sanctions from the league in which he or she plays but also civil and criminal sanctions as a regular person. In the sports context, criminal law and civil law should be used together to achieve a practical deterrent while allowing for rehabilitation.
A form of interplay between civil and criminal law in courtrooms is due to the introduction of the recklessness standard of civil liability in sports injuries. As explained before, the negligence standard of care could not be used in relation to sports due to players consenting to foreseeable injuries. Therefore, the recklessness standard was introduced. Now both civil and criminal courts need intent to be proven in the case of violence in sports, albeit the criminal court will have a higher level of proof that needs to be fulfilled.
Civil and criminal law should not interfere with the rules of the game. Sports leagues should develop rules for an acceptable standard of play within the game without any outside interference, and any conduct that takes place within the rules of play should not give rise to legal liability due to the implied doctrine of consent. However, courts must emphasize that any act that departs from the rule of the game—which cannot have any implied consent—must be punished with both civil and criminal sanctions to deter future violent behavior.
A perfect example of the interplay between civil and criminal law was the Indiana Pacers and Detroit Pistons brawl on November 19, 2004, which resulted in the NBA suspending nine players. This led to a total of $11 million lost in salary due to the suspensions[28] as well as assault charges against the players. Five fans also faced criminal charges and were banned for life from attending Pistons home games. The brawl took place not only on the court between the players after play had stopped but also broke the invisible barrier between spectators and athletes when the players and spectators started fighting. The players and fans all faced criminal sanctions and civil sanctions, with the players suspended and the fans banned from games. Once again, criminal law alone was not an effective deterrent—the players were only sentenced to probation and community service. What did however prove to be an effective deterrent was the mix of civil and criminal law.
The brawl, and the NBA’s corresponding rule changes, led the league to increase its security during games and to change its alcohol policy, so that no drinks could be sold after the third quarter. The words of Stephen Jackson (a player for the Indiana Pacers) summed up the punishment best: “I actually think [Stern, the President of the NBA] took it light on us, because he could have easily kicked us out the league. This is my opinion. Taking $3 million was harsh, but I’d rather give that $3 million up and still have my job than keep the $3 million and be kicked out the league.”[29] The interplay between civil law, in the form of league sanctions and updated league rules, and criminal law, in the form of probations and community service, proved successful as it prevented an incident on such a massive scale from happening again.
Conclusion
Violence can only be curbed by a mix of league sanctions, civil claims, and criminal punishment. Leagues cannot regulate violent conduct by themselves because their sanctions are not a sufficient deterrent. Athletes know that an act they might do on the field will not be subject to criminal sanctions, and therefore no punishment short of being banned from playing the sport will deter them. League commissioners state that any act of violence will be punishable, however, the leagues are biased and trying to protect their revenue stream, which constrains the severity of their punishments. In the cases of McSorley and Bertuzzi, both players were given conditional discharges and continued to play in the NHL, which sends a message to the athletes that they are above the law.
An act was proposed in Congress called the Sports Violence Act of 1980, which provided for the standardization of criminal violence in sports and would have placed criminal sanctions on athletes that used “excessive violence during professional sports events.” An act such as the Sports Violence Act of 1980 would be perfect for reducing sports violence. Further, by enacting such an act, criminal courts would be more consistent in not only charging athletes for various violent actions that took place in sports but also in giving reasonable punishments that could act as deterrents. The bill however failed due to its vague and inconsistent penalties.[30]
To prevent any excessive violence that cannot be consented to from taking place in sports, both criminal law and civil law must apply. The current lack of interplay between civil and criminal law has resulted in an increase in sports violence, as there is no deterrent against athletes committing violence. Athletes need to be reminded that they are not above the law. Therefore, a new Sports Violence Act needs to be introduced by Congress, which has complete penalty clauses to charge athletes for violent crimes committed on the sports field.
In the scenario of the 2017 NBA Finals when Kevin Durant punches Lebron James, he should be ejected from the game immediately, suspended, and fined. He should also be adequately punished by paying Lebron James money for the assault through a civil claim and punished under criminal law by doing community service or facing probation or jail. That single punch would end up costing the Golden State Warriors the championship as their Most Valuable Player would have been suspended.
[1] Stefan Fafinksi, “Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries,” The Journal of Criminal Law 69 (2005): 414-426, accessed July 30, 2017.
[2] Jeffrey Standen, “The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence,” Journal of Criminal Law and Criminology 99 (2009): 619-642, accessed July 29, 2017.
[3] Adam Epstein, “Incorporating the Criminal Law in Sport Studies,” The Sport Journal 12 (2009), accessed July 30, 2017.
[4] Fafinski, supra note 1.
[5] 31 Ill. App.3d 212 (1975).
[6] Model Penal Code § 2.02.2 (c).
[7] Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979).
[8] Clause 15 of an NFL contract, accessed July 31, 2017, https://www.sec.gov/Archives/edgar/data/1573683/000104746913009713/a2216998zex-10_3.htm.
[9] Janine Kim and Matthew Parlow, “Off-Court Misbehavior: Sports Leagues and Private Punishment,” Journal of Criminal Law and Crimonology 99 (2009): 573-598, accessed July 30, 2017.
[10] Molinas v. National Basketball Association, 190 F.Supp. 241, 242 (S.D.N.Y. 1961).
[11] Section IX(e) of the official NBA Rule Book 2015-2016, accessed July 29, 2017, http://www.nba.com/news/officiating.
[12] Salary of Lebron James for the 2016-2017 season, accessed July 30, 2017, http://hoopshype.com/salaries/players/.
[13] Benjamin Thompson, “Personal Foul… 15 Years In Jail: Sports’ Problem With Excessive Violence And The Severe Punishment Solution,” University of Missouri-Kansas City Law Review 76 (2008): 769-788, accessed July 28, 2017.
[14] Ahiza Garcia, “NBA fines: Where does the money go?” CNN, March 1, 2017, accessed July 30, 2017, http://money.cnn.com/2017/02/24/news/nba-fines-charity/index.html. (Note that while the title only refers to NBA funding, the article itself also describes where fines in other sports federations go.)
[15] Charles Harary, “Aggressive Play or Criminal Assault? An In Depth Look at Sports Violence and Criminal Liability,” Columbia Journal of Law & the Arts 25 (2002): 171-196, accessed July 26, 2017.
[16] Model Penal Code § 211.1 reads: “A person is guilty of simple assault if he attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or negligently causes bodily injury to another with a deadly weapon; or attempts by physical menace to put another in fear of imminent serious bodily injury. Similarly, a person is guilty of aggravated assault if there was the attempt to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.”
[17] California Penal Code, Title 8, Chapter 9, § 242.
[18] 466 N.W.2d 919 (Iowa Ct. App. 1990).
[19] 86 Misc.2d 280 (N.Y. Misc. 1976).
[20] Model Penal Code § 2.11.2(b).
[21] California Penal Code, supra note 17.
[22] 1 C.C.C. (2d) 333 (1971).
[23] 2 C.C.C 2d. 442 (1970).
[24] Regina. v. Ciccarelli, 54 C.C.C. (3d) 121 (1989).
[25] Regina v. McSorley, 2000 BCPC 116 (CanLII).
[26] “Canucks’ Bertuzzi charged with assault,” CBC News, June 25, 2004, accessed July 30, 2017, http://www.cbc.ca/news/canada/canucks-bertuzzi-charged-with-assault-1.499287.
[27] Katie Strang, “Canucks settle with Steve Moore,” ESPN, August 20, 2014, accessed July 30, 2017, http://www.espn.com/nhl/story/_/id/11375870/steve-moore-lawsuit-todd-bertuzzi-vancouver-canucks-settled-court.
[28] Jonathan Abrams, “The Malice at the Palace,” Grantland, March 20, 2012, accessed July 31, 2017, http://grantland.com/features/an-oral-history-malice-palace/.
[29] Ibid
[30] Mathew P. Barry, Richard L. Fox & Clark Jones, “Judicial Opinion on the Criminality of Sports Violence in the United States,” Seton Hall Journal of Sports & Entertainment Law 15 (2005): 1-34, accessed July 29, 2017.
