Hockey Fought the Law... and the law won. Below is my column in this week's Harvard Law Record. It deals with the issue of criminal liability for on-field activities, a subject I have covered a great deal on this blog.



There are certain rules of a civilized society to which everyone can agree. Rules such as "chew with your mouth closed" and "do not drop your library book in the toilet." Another rule known by most is "chairs are for sitting and not for throwing." But during a September 13th game between the Oakland A's and the Texas Rangers, Texas pitcher Frank Francisco forgot about the "no chair throwing" rule. Toward the end of the night, a brawl broke out between the Rangers players and fans in Oakland who had been heckling the team throughout the game. In the melee, Francisco grew angry at the folding chair he had been sitting on, picked it up, and hurled it into the crowd. Unfortunately for Francisco, his aim with the chair was better than his aim when pitching, and the chair struck an Oakland fan, breaking her nose.



What I have just described may be the world's easiest issue-spotter. It seems clear that Francisco, although severely punished by Major League Baseball, should also face legal liability for his actions. The fan has already filed suit in tort against the reliever and the local authorities are considering a criminal case.



But the threat of legal liability against athletes has not been limited to conduct that is blatantly beyond the boundaries of the sport. Rather, in a number of recent cases, plaintiffs have sought to bring legal action against opponents as a result of conduct occurring during an official game. In a National Hockey League game this past March, Vancouver player Todd Bertuzzi delivered a violent sucker punch to the head of Colorado player Steve Moore, a hit that caused Moore to fall to the ice, breaking his neck and giving him a concussion. The attack reminded many hockey fans of a 2002 incident, where Boston player Marty McSorley intentionally slashed an opponent across the face with his stick.



In both cases, the NHL handed out lengthy suspensions and large fines against the two perpetrators. But this was not enough for local authorities, and prosecutors filed criminal charges against both players. McSorley, who retired following his suspension, was found guilty and received an 18-month suspended sentence. Bertuzzi pled not guilty in August to a charge of assault causing bodily harm and will stand trial this fall.



Any follower of sports knows that conduct that would be considered illegal outside the arena is often perfectly acceptable on the field of play. It seems clear that tackles in football or hard fouls in basketball are not criminal acts; it seems equally certain that Francisco's chair-throwing incident is. So, where should the line be drawn? In the cases of McSorley and Bertuzzi, should criminal liability attach?



The analysis seems to begin with whether or not the action is "part of the game." If an act is acceptable in a particular sport, then all participants can be said to have assumed the risk for purposes of tort, or granted their consent in the context of criminal law. There is no legal liability when one hockey player "checks" another; these hits are acceptable parts of hockey and all players consent to such physical conduct by agreeing to play the game. But isn't fighting just as much a part of hockey? According to USA Today, there were 780 fights in the NHL last season, or about two fights every three games. Players that fight are given at most a five-minute penalty and are rarely, if ever, suspended by the league. In fact, players that fight often (called "enforcers") are routinely sought by teams as a means of protecting star players. Thus, it seems that while perhaps not condoned by hockey officials, fighting is very much a "part of the game."



Some have argued, though, that the hits by McSorley and Bertuzzi crossed the line, and were more premeditated assaults than legitimate hockey hits. But would this be the case if the opponents had not been seriously injured? If McSorley's stick had missed its target, would he have been arrested and charged with assault and attempted battery? If Bertuzzi's punch had just resulted in a black eye, would it even have made the highlight reels? The answer in both cases seems to be no.



Unlike Francisco's action, which would have been deemed wrong even if no injuries had resulted, or unlike a player who fires a handgun at an opposing player, or even unlike a baseball player who clubs an opponent over the head with a bat, the actions of McSorley and Bertuzzi were only deemed to be "criminal" because of the result that occurred. And while this may be an appropriate way to determine which crime has taken place or how severe the punishment should be for that crime, it is a poor method of determining whether or not criminal liability should attach. Rather, on-field actions should only lead to legal action when the action taken is so outrageous that it be deemed wrong and outside the bounds of the sport, no matter the consequences that result.

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