By Matthew Zadro (lawyer, sports fan)
We’re all accustomed to hearing about off-ice/off-field criminal antics of our favourite athletes. In fact, the rogues gallery of professional sports has managed to cover an impressive gamut of criminal law, educating the public about the nuances of the major criminal offences in the process.
This badboy behaviour by our beloved gladiators is accepted and expected, so much so that some NFL fantasy leagues will let you pick up an additional player if someone on your roster misses time due to “injury/and or arrest”. Criminal acts committed by athletes are also often met with more leniency than you or I could expect if, say, we were accused of running a nationwide gambling ring out of New Jersey.
But in recent years, athletes’ tendency toward criminal behaviour has slowly crept onto the field/ice. At least that’s how courts and police seem to be portraying it. Check out a recent blog posting explaining what constitutes an assault in sport and listing examples of such in hockey alone.
Quasi-criminal violence in sports is nothing new, but society’s reduced tolerance for it is. Surely, if Rocket Richard were playing today and cracked a stick over Kerry Fraser’s melon, the Richard Riot might have been a Richard Jail-Break. Legend states that John Ferguson instructed Bobby Clarke to “tap” Valeri Kharlamov on the ankle during the ’72 Summit Series, which resulted in Clarke delivering a vicious slash and breaking the ankle of the star Russian. If true, Canadians may have to live with the fact that the most celebrated moment in Canadian history (and, to some, the pinnacle of our national existence, strangely more significant than the discovery of insulin or our contribution to victory on D-Day), was based on what would now surely be a criminal act were it to happen today on Canadian soil.
But the hits are getting harder and the injuries more frequent. Blame it on stronger equipment, residual effects of performance enhancing drugs, video games, or excessive violence in the cartoons shown in the dressing room, something is desensitizing players’ attitudes towards violence. Leagues and law enforcement agencies are wrestling with what to do next.
Player on Fan Crime – an Easy One
Criminal acts between athletes and fans are fairly simple to resolve – if Brett Favre harasses a team employee or if Canucks’ forward Rick Rypien slaps a fan, they will likely automatically face the same sanction at law as anyone else. Their employer (the league) can then respond with appropriate punitive measures reflecting the fact that the crime has tarnished the organization.
Player on Player Crime – Not So Easy
Crimes that are committed between players during play raise more difficult questions. Some argue that leagues must establish tougher sanctions (i.e. fines, suspensions) for those violent actions that would ordinarily be considered criminal. But there’s a few problems with that train of thought.
First of all, when is an offence between a player a “crime”? Different jurisdictions enforce the law differently. In Canada, the Criminal Code is applied uniformly across the country, meaning that a crime at the Bell Centre in Quebec is also a crime at the ACC in Ontario. However, the criminal laws of Canada do not exactly mirror those of the U.S. In fact, each state has its own set of criminal laws.
Imagine the McSorley – Brashear incident happened in Boston rather than Vancouver. The conduct that was considered by Vancouver police to be a criminal assault on the ice of the GM Place might not have met the standard of assault enforced by law officials in Boston. Perhaps an overly aggressive D.A. in Philadelphia may press charges for a head shot that makes the front page of the Philadelphia Inquirer but that might not have even been noticed, or satisfied the definition of criminal assault, in that hockey hotbed of Sunrise, Florida.
So, if the NHL imposes a standard whereby ANY player convicted of a criminal offence committed during a game receives additional punishment, those players that commit “crimes” in a more “punitive” jurisdiction would be unfairly penalized by the league in proportion to others that commit the same act in a more “tolerant” jurisdiction.
It’s not realistic to expect players to be well versed on the legal intricacies of each jurisdiction in which they play, (sometimes it’s surprising if these guys can point out the city in which they’re playing on a map), therefore one of two things would happen under this scenario: 1) players would be afraid to touch each other in fear of committing an assault in the city that they happen to be in; or, (and more likely) 2) the league’s rule would be ignored by players and likely not enforced by the league. Either way, the game is not improved and, in the latter and more likely scenario, the head shots/criminal acts continue.
Secondly, crimes committed on the ice/field are arguably “crimes of passion” and (with the odd exception) are not pre-meditated. In the heat of the battle, something happens that just makes Martin Havlat kick somebody with his skate. He can’t help it, and he likely didn’t plan to do it ahead of time. Studies have shown that, unlike property crimes (which people think through beforehand) these type of violent “spur of the moment” crimes can’t be deterred by any threat of punitive sanction. So, no matter what fine or suspension exists, with Marty, he won’t consider it at the time. If you step out of line, you might get sliced by the razor blade strapped to his foot. It’s the way things work.
Thirdly, in those instances where a violent act causes injury but criminal charges are not laid, how can a professional league determine if the act merits additional sanction? Where is the line when determining if an act was in excess of the “accepted level of risk” that the player/victim consents to when he signs up to play? This is an issue that has perplexed judges of the highest courts….is Gary Bettman really in a position to make this determination? When offenders’ careers and livelihoods are on the line, such decisions cannot be arbitrary or based on the amount of media attention thrust upon an event. McSorley’s arrest effectively ended his career. Would the same result have occurred without the scrutiny created by the Vancouver media?
Is Don Cherry Right - Again?
Players should be warned. Violent criminal activity within professional leagues will continue and each player has a possibility of being either a victim or an offender. The increased number of cameras at every sports venue mean that nary a criminal act will go unnoticed. The public will continue to pressure law enforcement agencies to apply criminal sanctions to violent acts (especially when the offender is a member of the visiting team) and any attempt to control the violence by the league will be either unfair or ineffective.
Is Don Cherry right? Have improvements in equipment given players a sense of recklessness and invulnerability that has led to what may be considered criminal acts throughout the major sports leagues? Surely the leagues can’t mandate a return to inferior padding in order to restore a sense of vulnerability and respect amongst players.
However, aside from giving Greg Devorksi a badge and a gun, it would appear that someone has to come up with a real solution for violent crimes occurring within sports, because anything proposed thus far has not and will not work.