After the Whistle Blows: Criminal Liability in Sports Law

By jlamer [Tuesday, March 25th, 2014]

Colorado Avalanche v Boston BruinsOn December 7, 2013, Shawn Thornton of the Boston Bruins sucker punched Brooks Orpik of the Pittsburgh PenguinsThe result is that the National Hockey League (NHL) gave Thornton a 15-game suspension for the hit. Will a prosecutor press charges?  Probably not.  The media fully covers when athletes get charged with crimes like domestic violence, rape and murder.  But they do not always pay attention to excessive violence in sports, because that is not a crime.  Excessive violence includes hits that are unrelated to the game and hits that are outside the scope of the game, and they should be crimes.

Athletes should be subject to the criminal justice system, not just for criminal behavior off the field (rape, murder, dog fighting); rather prosecutors should be able to bring charges against athletes who are criminally violent on the field.  Prosecutors should not be able to bring charges for any and every hit, as they should not interfere with the game.  Instead, they should have guidelines to follow in order to press these charges, such as the proposed Sports Violence Act of 1980.  The point of the Act was to protect athletes from excessive violence in the game, and provide prosecutors with guidelines to exercise their discretion in bringing criminal charges against game-time conduct, to ensure even-handed enforcement of the criminal laws.  Without these guidelines, prosecutors who press charges for game-time conduct might be criticized for interfering with the game or the leagues’ own discipline.

But the Act never passed, and the result is an even greater disparity in treatment of game-time versus off-field acts of aggression.  Currently, an otherwise criminal act in hockey results in a mere 2- or 5-minute penalty, while athletes who commit similar acts outside the game risk convicted of a crime and incarceration.  For example, former footballer, Alonzo Spellman, served 1 year in prison for simple assault when a similar act on the field would have been met with at most a flag and a fine.  Former baseball player, Milton Bradley spent almost 3 years in prison for assault with a deadly weapon, when stabbing someone with his spikes during a game would at most have resulted in him being ejected.

Aside from the lack of guidelines for bringing charges against athletes, another problem with applying criminal law to sports is that athletes consent to the expected behavior in the game and assume the risks that are inherent in the game they are playing.  However, they should not be expected to assume the risk and consent to hits and injuries that are not inherent in the game.  When an athlete acts beyond the scope of the game, whether it is swinging a hockey stick at a player’s head, tackling someone after the play is over or tackling someone who is totally separate from the play, that athletes should be open to criminal liability.

Athletes are often considered role models for our youth.  In fact, Kadence Otto, in an article from the Journal of Legal Aspects of Sport, writes that “[s]port sociologists have noted that sport is a microcosm of society; namely, the behavior exhibited by athletes is reflective of the behavior exhibited by those in society in general.” People look up to athletes as people they would like to emulate, so when athletes commit any crimes, on-field or off-field, they should be punished, as anyone else is, to show that this is not proper behavior.  People use sports to help them decide how to treat others, how to conduct themselves, and even when illegal conduct is okay if it gains them undue advantages.  For some reason though, we ignore the criminality of something when it happens on the field.  While under the protection of their uniforms, we pay no mind to athletes’ otherwise criminal acts.  It then becomes okay for a person to act beyond the scope of the rules of the game as long as they are within the confines of the game.  Jeffrey Standen in Taking Sports Seriously: Law and Sports in Contemporary American Culture, notes that “The philosophy behind criminal law is based on society’s need to be free from harmful conduct.”  While “society” is not usually in harms direct way during a sporting event, one could argue it is indirectly in harm when children look up to their role models.  Society can also be directly harmed when on-field violence escalates, and makes its way into the stands, especially in basketball, where brawls have broken out.

We should not expect athletes to act like people they are not just because they are role models.  The role they are modeling, though, is professional athlete.  According to Standen, “Athletes display the athletic virtues:  diligence, perseverance, the value of training, fair play and sportsmanship, grace under pressure, and the pursuit of excellence.  The best of our athletes exhibit these virtues abundantly, in full public display.”  We should, however, expect them to be treated the same way as everyone else.  Just as anyone else who commits a crime at work should be charged with that crime, so should athletes.  Says Standen, “We can’t fairly ask our sports stars to be especially kind or honest, but we can ask them to exhibit good sportsmanship and a commitment to fair play.”  When they fail, we should be able to fairly expect them to pay for their actions, just as the people looking up to them have to do.

One Comment

jack sprat: Reason #2,684,321 -- Why Shakespeare was on point: The legal profession is not the only institution in this society. We'll call you when and if we need you. In this case, keep your fucking hands off, thank you very much. The various sports leagues should
3 years ago

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