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THE PROBLEM OF SPORTS VIOLENCE AND THE
CRIMINAL PROSECUTION SOLUTION
Jeff Yates† and William Gillespie††
INTRODUCTION ............................................. 145
I. THE PROBLEM ....................................... 147
A. S
URVEY OF
S
PORTS
V
IOLENCE
...................... 147
1. Football ....................................... 148
2. Basketball ..................................... 149
3. Baseball ....................................... 149
4. Hockey ........................................ 150
B. S
OCIETAL
E
FFECTS
................................. 150
II. THE VIABILITY OF CRIMINAL PROSECUTIONS
FOR SPORTS VIOLENCE ............................. 152
A. C
ANADIAN
F
OUNDATIONS
........................... 153
B. A
MERICAN
F
OUNDATIONS
........................... 155
III. SPORTS PROSECUTIONS: POTENTIAL DEFENSES
AND IMPEDIMENTS ................................. 160
A. T
HE
C
ONSENT
D
OCTRINE
........................... 160
1. Violation-of-the-Game-Rules Theory of Consent. . 161
2. The Model Penal Code Standard................ 162
3. The Canadian Majority View ................... 163
4. The German Approach ......................... 164
B. O
THER
D
EFENSES TO
B
ATTERY
...................... 165
1. Self-Defense ................................... 166
2. Involuntary Reflex.............................. 166
3. Provocation.................................... 167
C. E
XTRA
-L
EGAL
O
BSTACLES
.......................... 167
CONCLUSION................................................ 168
INTRODUCTION
“As long as I’m gonna walk him, I might as well hit him.”
— former Los Angeles Dodgers pitcher Stan Williams, after hitting
Hank Aaron in the head with a fastball on a 3-0 pitch.
1
† J.D., Ph.D., Assistant Professor, University of Georgia, Department of Political
Science.
†† Ph.D. Candidate, University of Georgia, Department of Political Science.
1
Mark Kram, Their Lives Are on the Line, S
PORTS
I
LLUSTRATED
, Aug. 18, 1975, at 38.
145
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“The game is legalized violence. . . . I can go into a game and just liter-
ally try to break somebody’s neck . . . . It happens all the time.”
— former Dallas Cowboys tight end Jean Fuggett.
2
“I just don’t see, no matter how wrong the act is, how anything that
happens in an athletic contest can be criminal.”
— former Boston Bruins player David Forbes.
3
While the sentiments expressed above may be considered outra-
geous by most reasonable people, they perhaps crudely reflect the under-
lying and largely unexpressed sentiment of many athletes and sports
spectators — that acts of violence occurring in the context of competitive
sports are acceptable and should be exempt from criminal liability. The
specter of sports violence as a threat to our society has received extensive
literary review.
4
However, practical attempts to cure this problem have
received little support from the public.
5
Violence has been associated
with sports since the ancient Greeks and Romans engaged in combative
rituals.
6
However, centuries later, society remains unable to find a way
to effectively extricate unnecessary violence from the sports it enjoys so
much.
Recent decades have witnessed the evolution of civil lawsuits be-
tween sports participants for tortious actions.
7
The success of civil law-
suits,
8
although somewhat limited, represents an encouraging sign that
society is willing to hold sports participants accountable for their actions.
Additionally, commentators have been quick to devise non-prosecution-
oriented methods of curbing sports violence, including the implementa-
tion of self-regulation by sports leagues,
9
the creation of a sports arbitra-
tion court,
10
and the establishment of a federal professional sports
2
William Hechter, The Criminal Law and Violence in Sports, 19 C
RIM
. L.Q. 425, 437
n.63 (1976–77).
3
See Gary W. Flakne & Allan H. Caplan, Sports Violence and the Prosecution, 13
T
RIAL
M
AG
. 33, 34 (1977).
4
See, e.g., Cameron Jay Rains, Note, Sports Violence: A Matter of Societal Concern, 55
N
OTRE
D
AME
L. R
EV
. 796 (1980).
5
See Bradley C. Nielsen, Note, Controlling Sports Violence: Too Late for the Carrots
— Bring on the Big Stick, 74 I
OWA
L. R
EV
. 681, 694 (1989) (explaining that legislators did not
want to spend federal funds to control sports violence).
6
Id. at 682.
7
See Gary Norman Jahn, Comment, Civil Liability: An Alternative to Violence in Sport-
ing Events, 15 O
HIO
N.U. L. R
EV
. 243, 244–49 (1988); Barbara Svoranos, Comment, Fight-
ing? It’s All in a Day’s Work on the Ice: Determining the Appropriate Standard of a Hockey
Player’s Liability to Another Player, 7 S
ETON
H
ALL
J. S
PORT
L. 487, 496–99 (1997).
8
See Jahn, supra note 7, at 244–48.
9
See Don Eugene-Nolan Gibson, Violence in Professional Sports: A Proposal for Self-
Regulation, 3 C
OMM
/E
NT
L.J. 425, 447–53 (1980).
10
See Chris J. Carlsen & Matthew Shane Walker, Note, The Sports Court: A Private
System to Deter Violence in Professional Sports, 55 S. C
AL
. L. R
EV
. 399, 399 (1982).
2002] S
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IOLENCE AND
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ROSECUTION
147
violence commission.
11
While these proposals all have some merit and
in fact might effectively deter sports violence, extended discussion of
these proposals is beyond the scope of this article.
In this article, we examine the proposition that criminal prosecution
of sports participants could provide an effective remedy to the problem
of sports violence. Section I surveys the widespread violence that has
permeated most major sports and explains how sports violence adversely
affects the public interest. Section II considers the viability of criminal
prosecutions in sports by discussing the foundations that have been laid
for sports prosecutions, both in Canada and in the United States. Finally,
Section III analyzes some of the defenses and obstacles that might arise
in the prosecution of sports participants. We conclude that criminal pros-
ecution provides a viable and appropriate method of dealing with the
excessively violent actions that too often occur in the context of athletic
competition.
I. THE PROBLEM
Often, a threat to the public interest is largely ignored if it does not
have immediate and easily recognizable effects. Such is the current
problem with sports violence. In this section, we endeavor to bring this
problem to the fore by outlining the excessive violence pervasive in the
sports community. While instances of excessive violence can be found
in almost all sports, we focus here on those sports that are traditionally
the most conspicuous for the violence problem and that tend to draw the
most media attention. In the second part of this section, we argue that
excessive violence in sports adversely affects the public interest.
A. S
URVEY OF
S
PORTS
V
IOLENCE
The proposition that excessive violence is prevalent in sports is, to a
large degree, self-evident. However, acts of excessive violence by play-
ers usually occur sporadically and are soon forgotten. Thus, although the
public is momentarily outraged by the vicious conduct of a player, spec-
tators are soon lulled into a sense of well-being by the passage of time.
When the violent acts of athletes are considered in the aggregate, how-
ever, it becomes apparent that a significant problem exists.
11
See Ronald A. DiNicola & Scott Mendeloff, Controlling Violence in Professional
Sports: Rule Reform and the Federal Professional Sports Violence Commission, 21 D
UQ
. L.
R
EV
. 843, 879–83 (1983); Kevin A. Fritz, Note, Going to the Bullpen: Using Uncle Sam to
Strike Out Professional Sports Violence, 20 C
ARDOZO
A
RTS
& E
NT
. L.J. 189, 222–28 (2002)
(proposing a “National Sports Policy Commission” to handle cases between league self-regu-
lation and the courts).
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1. Football
During the early twentieth century, football almost became extinct
as a result of its violent nature. In 1905 after a particularly violent foot-
ball incident,
12
President Theodore Roosevelt threatened to abolish foot-
ball by executive order unless the game could be made less violent.
13
Although football managed to persevere, it is conceivable that had
Roosevelt witnessed the degree of violence in modern football, he would
have carried out his threat.
One study indicates that between 1933 and 1976, organized football
claimed the lives of 1,198 participants.
14
Incidents of extreme and un-
necessary football violence certainly were not limited to football’s in-
fancy and persist well into the modern era.
15
In recent years, late hits on
standout quarterbacks have led critics to charge that players make such
hits in order to win by robbing opponents of their best offensive play-
ers.
16
Such incidents can cause extensive injuries and sometimes end
careers.
17
Former Pittsburgh Steelers standout Lynn Swann, who suf-
fered several concussions due to excessively violent play during the
course of his career, at one time threatened to prematurely quit football,
stating, “Extracurricular violence is increasing[,] and nothing is being
done about it.”
18
There is evidence that this type of violence has a
“trickle down” effect on amateur and youth sports.
19
12
See R
ICHARD
B. H
ORROW
, S
PORTS
V
IOLENCE
: T
HE
I
NTERACTION
B
ETWEEN
P
RIVATE
L
AWMAKING AND THE
C
RIMINAL
L
AW
6–7 (1980). Horrow recounts that in that 1905 college
football game, the University of Pennsylvania’s team attempted to win by reducing the
Swarthmore team’s star lineman to a bloody pulp. Id. Swarthmore won the game nonetheless.
13
Id.
14
Richard B. Horrow, Violence in Professional Sports: Is It Part of the Game?, 9 J.
L
EGIS
. 1, 1 (1982) (citing Peterson & Scott, The Role of the Lawyer on the Playing Field, 7
B
ARRISTER
10 (1980)).
15
John Keefe, Violence in Sports Is on the Rise, 67 A.B.A. J. 514, 514–15 (1981).
16
See Bob Oates, Defense in NFL a Dirty Game, L.A. T
IMES
, Sept. 9, 2001, at D1.
17
See Nielsen, supra note 5, at 685. In 1987, the Green Bay Packers’ Charles “Too
Mean” Martin slammed the Chicago Bears’ Jim McMahon to the ground long after the play
had ended, tearing McMahon’s rotator cuff. The only punishment imposed on Martin was a
two-game suspension. McMahon never regained his prior form and continued to be hampered
by related shoulder injuries for the rest of his career. Id.
18
Recent Decision, A Professional Football Player Assumes the Risk of Receiving a
Blow, Delivered Out of Anger and Frustration but Without Specific Intent to Injure, 12 G
A
. L.
R
EV
. 380, 390 n.51 (1978). After being seriously injured by a blow to the head administered
by another player, Swann said, “I almost retired. It wasn’t the intimidation, it was the unnec-
essary brutality. I couldn’t see playing a game and risking my life.” Gibson, supra note 9, at
431 nn.55 & 56.
19
C. Antoinette Clarke, Law and Order on the Courts: The Application of Criminal
Liability for Intentional Fouls During Sporting Events, 32 A
RIZ
. S
T
. L.J. 1149, 1166 (2000).
Particularly telling is a letter from a youth football player to Jack Lambert, a former linebacker
for the Pittsburgh Steelers, remarking, “I hit some kid the other day and broke his arm, and
when I did I thought of you.” J
OHN
U
NDERWOOD
, D
EATH OF AN
A
MERICAN
G
AME
: T
HE
C
RI-
SES IN
F
OOTBALL
70 (1979).
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149
2. Basketball
Basketball experiences more incidents of violence than might be ex-
pected, given that it is generally considered to be a non-contact sport.
20
Probably the most well-known act of violence in basketball occurred in
1977, when Rudy Tomjanovitch of the Houston Rockets attempted to act
as peacemaker in a fight between the Los Angeles Lakers’ Kermit Wash-
ington and Houston’s Kevin Kunnert.
21
As Tomjanovitch approached to
break up the fight, Washington turned around and landed what Lakers
assistant coach Jack McCloskey called “the hardest punch in the history
of mankind.”
22
Tomjanovitch suffered a fractured jaw, broken nose,
skull fracture, facial lacerations, brain concussion and spinal fluid leak-
age from the brain cavity.
23
He sued the Lakers, and the jury awarded
Tomjanovitch more than $3 million in actual and punitive damages
(Tomjanovitch had asked for only $2.6 million).
24
3. Baseball
Although baseball involves even less contact than basketball, it does
have what has been called “the most dangerous weapon in sports,” the
beanball.
25
Its deadly nature is clear from the fact that in 1920, the
Cleveland Indians’ Ray Chapman was killed by a pitch from the New
York Yankees’ Carl Mays.
26
Pitchers often feel obligated to hit oppos-
ing players in revenge after their teammates have been hit.
27
Former
Dodgers pitcher Don Drysdale has explained it this way: “[I]t was two
20
These incidents include a notorious slugging match between the Boston Celtics’ Dave
Cowens and the Atlanta Hawks’ Tree Rollins in 1977, DiNicola & Mendeloff, supra note 11,
at 851; and a bench-clearing brawl involving the Miami Heat and the New York Knicks during
the 1997 playoffs, J
OHN
M
C
G
RAN
, W
ORLD
’
S
G
REATEST
S
PORTS
B
RAWLS
33 (1998).
21
Rains, supra note 4, at 803. For an in-depth discussion of the incident, see J
OHN
F
EINSTEIN
, T
HE
P
UNCH
: O
NE
N
IGHT
, T
WO
L
IVES
,
AND THE
F
IGHT
T
HAT
C
HANGED
B
ASKETBALL
F
OREVER
(2002).
22
Rains, supra note 4, at 803; see also Mary Carroll, It’s Not How You Play the Game,
It’s Whether You Win or Lose: The Need for Criminal Sanctions to Curb Violence in Profes-
sional Sports, 12 H
AMLINE
L. R
EV
. 71, 71 (1988) (explaining that the force of Washington’s
blow knocked Tomjanovitch backward onto the court, where he lay motionless and bleeding
for several minutes). The surgeon who operated on Tomjanovitch described rebuilding his
face as if it were a “jigsaw puzzle.” The doctor added that “it was like trying to put a cracked
egg back together with Scotch tape.” Id.
23
Carroll, supra note 22, at 71 n.3.
24
Rains, supra note 4, at 803. The parties settled for $2 million before the case was
heard on appeal. See also John Feinstein, The Punch, S
PORTS
I
LLUSTRATED
, Oct. 21, 2002, at
75. In addition, the NBA suspended Washington for sixty days and fined him $10,000. Fritz,
supra note 11, at 192 n.21.
25
Gibson, supra note 9, at 432 (quoting Kram, supra note 1, at 32). A beanball is a
pitch intentionally thrown at the batter’s head for revenge, to intimidate, or out of frustration.
See Nielsen, supra note 5, at 684.
26
Hechter, supra note 2, at 440. Chapman’s death remains major league baseball’s only
beanball fatality.
27
Id.
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for one. One of our guys, two of theirs.”
28
This sort of retribution,
dubbed “beanball wars,” often leads to bench-clearing brawls.
29
4. Hockey
Hockey’s reputation as the most violent of all team sports is well
deserved. Former National Hockey League president Clarence Campbell
has openly admitted that players are under pressure to fight.
30
Sports
attorney and agent Bob Woolf agrees that players are pressured to fight:
The premium the NHL puts on fighting was reestab-
lished every time I talked to a team on behalf of a draft
choice. Invariably, the interview would get around to
how well my client could fight . . . . To my endless
amazement, the clubs — if they got the impression that
the boy wasn’t tough enough — frequently offered to
enroll him in boxing classes.
31
Not surprisingly, some players — called “enforcers” — are kept on
teams primarily for their fighting ability and to intimidate opponents.
32
B. S
OCIETAL
E
FFECTS
It is evident from the accounts of violent play detailed above that
excessive violence has had a pervasive influence on the world of sports.
However, sports violence does not operate in a vacuum.
33
The proposi-
tion that sports violence has a detrimental effect on society is well docu-
mented in psychological and sociological studies.
34
Professional and
amateur sports have become an integral part of our culture and national
identity. Sports can be seen in one form or another at any time of day or
night, and athletes are among the most publicized individuals in the
28
Kram, supra note 1, at 37. During the 2000 World Series, New York Yankees pitcher
Roger Clemens picked up the jagged barrel of the New York Mets’ Mike Piazza’s broken bat
and threw it at Piazza. Clemens was later fined $50,000 for throwing the bat, but no criminal
charges were filed. Murray Chass, Yankees’ Clemens Is Fined $50,000, N.Y. T
IMES
, Oct. 25,
2000, at D6 (quoting Frank Robinson, the baseball official who imposed the penalty, as
describing Clemens’s action as “reckless”). During a 1999 college game, a pitcher beaned a
batter standing in the on-deck circle, later claiming that the victim had been timing the
pitcher’s warmups. The victim, who was struck in the eye, suffered severe retinal damage and
some permanent vision loss. The Sedgwick County, Kansas, district attorney considered prose-
cuting but declined to bring charges. Steve Zipay, Questionable Decision: McSorley Ruling
Renews Debate on How to Handle Violence in Sports, N
EWSDAY
, Oct. 8, 2000, at C10.
29
See Nielsen, supra note 5, at 684–85.
30
Hechter, supra note 2, at 428. Campbell has also maintained that the NHL’s main
purpose is to sell tickets: “We must put on a spectacle that will attract people.” Id.
31
B
OB
W
OOLF
, B
EHIND
C
LOSED
D
OORS
146–47 (1976).
32
Gibson, supra note 9, at 430.
33
Nielsen, supra note 5, at 687.
34
See, e.g., Brenda Jo Bredemeier, Athletic Aggression: A Moral Concern, in S
PORTS
V
IOLENCE
49 (Jeffrey H. Goldstein ed., 1983).
2002] S
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world. In short, athletes’ words and actions have become a prominent
component of public discourse and cultural notions of acceptable
conduct.
In Seasons of Shame: The New Violence in Sports, Robert Yeager
describes a study conducted regarding the impact of sports violence on
children: “Three physicians . . . singled out television sports for its strong
tendency to foster an ‘Evel Knievel’ syndrome in kids. ‘Televised vio-
lence,’ they noted, ‘especially during sporting events and news report-
ing,’ is increasingly implicated in imitative and aggressive behavior by
children.”
35
A similar study focusing on young hockey players yielded equally
disconcerting results, concluding that “[v]iewing aggressive media mod-
els in hockey, and perhaps sports in general, does appear to have a sys-
tematic long-term impact on the behaviour of amateur players of
different ages.”
36
The pernicious effect of sports violence on the human
psyche is not limited to children. A sociological nexus also exists be-
tween violence among sports participants and violence among specta-
tors.
37
This point is tragically illustrated in the recent conviction of
parent Thomas Junta, who beat Michael Costin to death in front of both
men’s children after a disagreement between the two about violent play
in their sons’ youth hockey game.
38
Players will not refrain from using excessive violence as a weapon
until incentives are provided for them to do so.
39
Given the social impact
35
R
OBERT
C. Y
EAGER
, S
EASONS OF
S
HAME
: T
HE
N
EW
V
IOLENCE IN
S
PORTS
207 (1976).
Yeager cites another survey of teenagers that concluded “an internal vicarious reinforcement
occurs as a result of viewing aggressive sports models. If a player acts in an aggressive man-
ner, gets away with it, and is rewarded for his actions, the viewer has learned that aggression
pays.” Id. at 208–09 (emphasis omitted). See also Jeffrey H. Goldstein & Robert K. Arms,
Effects of Observing Athletic Contests on Hostility, in P
SYCHOLOGY OF
S
PORT
: I
SSUES AND
I
NSIGHTS
288–96 (A. Craig Fisher ed., 1976) (noting correlation between viewing of sports
violence and hostile behavior).
36
M
ICHAEL
D. S
MITH
, V
IOLENCE AND
S
PORT
117–18 (1983). The concept of athletes as
role models is embedded in our society. Thus, when an athlete sanctions the use of excessive
violence in sports, he adversely influences youth players. For example, premier hockey player
Bobby Orr produced a book for young hockey players in which he instructed youngsters on the
most effective way to win a hockey fight. See Clarke, supra note 19, at 1166 (citing B
OBBY
O
RR
& M
ARK
M
ULVOY
, B
OBBY
: M
Y
G
AME
224 (1974)).
37
See Gail Appleson, Spectator Violence: What They See Is What They Do?, 68 A.B.A.
J. 404, 404 (1982). Appleson writes, “Although psychologists once thought that spectators
could release their own aggressive urges simply by watching contact sports, some research
shows just the opposite. . . . As people become experienced with violence, the need grows for
more extreme violence to satisfy the wish for violent stimulation.” Id. This statement sug-
gests that current problems associated with fan violence will not decrease or stagnate but rather
will worsen over time.
38
See Michael Kurtz, Junta Gets 6 to 10 Years: Judge Doubles Guidelines in Rink Beat-
ing Death, B
OSTON
G
LOBE
, Jan. 26, 2002, at A1.
39
Carlsen & Walker, supra note 10, at 403–04 (arguing that if one player or team de-
cided to refrain from excessive violence, it would lose a competitive edge).
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noted above, it is apparent that the detrimental effects of sports violence
will remain (and probably worsen) under the status quo. Thus, govern-
ment is faced with the social imperative of implementing effective deter-
rents to sports violence. Criminal prosecution is one such available
deterrent. When the Ontario attorney general’s office began prosecuting
hockey players for excessive violence, the decision to prosecute was
based on a comprehensive report that had been commissioned on hockey
violence.
40
The report concluded that “[s]port, and particularly hockey,
need not be a symptom of a sick society. Hockey can be an effective
instrument to improve the social condition . . . [r]ather than a divisive
force, fueled by calculated animosities.”
41
II. THE VIABILITY OF CRIMINAL PROSECUTIONS FOR
SPORTS VIOLENCE
The primary rationale for invoking criminal prosecutions in re-
sponse to sports violence emanates from the principle that no particular
segment of society can be licensed to commit crime with impunity.
42
Opponents of this rationale often contend that internal league sanctions
are the most appropriate course of action.
43
However, league sanctions
have for the most part proven ineffectual.
44
As critics of league sanc-
tions have argued:
[T]o suggest that the governing body of a particular
sport determine appropriate sanctions for a quasi-crimi-
nal or a criminal act would be tantamount to granting the
board of directors of General Motors jurisdiction over
the determination of guilt or innocence and the appropri-
ate punishment for one of their employees who, while on
the job, killed his foreman. It would seem that if vio-
lence in sports is to be curtailed, the only effective rem-
edy lies with the state, where the capability of meting
out effective deterrent sanctions exists.
45
Thus, if a criminal justice system determines that sports violence
should be criminally prosecuted, the next step is to determine the viabil-
40
See Hechter, supra note 2, at 427.
41
W
ILLIAM
R. M
C
M
URTRY
, O
NT
. M
INISTRY OF
C
MTY
. & S
OC
. S
ERVS
., I
NVESTIGATION
AND
I
NQUIRY INTO
V
IOLENCE IN
A
MATEUR
H
OCKEY
45–46 (1974).
42
See Flakne & Caplan, supra note 3, at 33 (citing Regina v. Bradshaw, [1878] Cox
Crim. Cas. 83, a criminal prosecution for a death in a soccer game). For a comprehensive
discussion of the jurisprudential justifications for imposing criminal sanctions on excessively
violent sports participants, see H
ORROW
, supra note 12, at 110–60.
43
See generally, e.g., Gibson, supra note 9.
44
See Hechter, supra note 2, at 426.
45
Flakne & Caplan, supra note 3, at 33–34. See also Carroll, supra note 22, at 80–81
(asserting that self-regulation appears effective on paper but works poorly in real life).
2002] S
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153
ity of sports prosecutions. This section examines the development of
Canadian law and analyzes American foundations for criminal liability in
sports to illustrate how criminal sanctions could provide a practicable
method of curbing sports violence.
A. C
ANADIAN
F
OUNDATIONS
While American judicial systems have, for the most part, been re-
luctant to levy criminal sanctions on excessively violent sports partici-
pants, Canadians have demonstrated a decided effort to prosecute sports
participants who commit excessively violent acts.
46
In 1974, in response
to a particularly violent hockey game that included five seriously injured
players and hundreds of rioting fans, the Ontario attorney general’s of-
fice commissioned a report on sports violence and ultimately ordered
both police and prosecutors to more rigorously pursue breaches of the
criminal code in hockey.
47
Since 1970, there have been well over 100
successful criminal convictions by Canadian prosecutors, accompanied
by more than seventeen reported cases that demonstrate doctrinal devel-
opment in the field of criminal sports violence.
48
Most of the Canadian sports violence decisions have been issued by
trial courts and delivered orally, lacking the detail, precision, and organi-
zation of a written appellate decision.
49
Consequently, the courts cite
precedent sparingly and often look to the seminal Canadian sports vio-
lence cases of Regina v. Green
50
and Regina v. Maki.
51
Green and Maki
both resulted from a fight between Ted Green of the Boston Bruins and
Wayne Maki of the St. Louis Blues in 1969. Maki, who seriously injured
Green, was charged with assault causing bodily harm but was acquitted
on a successful claim of self-defense.
52
Green, who started the fight but
caused little harm to Maki,
53
was charged with common assault.
54
He
was acquitted on an “instinctive action” defense.
55
Although both cases
46
See Diane V. White, Note, Sports Violence as Criminal Assault: Development of the
Doctrine by Canadian Courts, 1986 D
UKE
L.J., 1030, 1033–34.
47
See Hechter, supra note 2, at 427–28.
48
See White, supra note 46, at 1034. This estimate is based on the analysis reported in
White’s 1986 article and our own Westlaw searches of reported cases since 1985. As White
points out, this estimate of doctrinal development is conservative because the Canadian courts
typically draw upon a broader range of cases than just participant-on-participant violence (e.g.,
player-on-official violence) in their judicial analysis, which were not considered in this calcu-
lation. Id. at 1034 n.15.
49
Id. at 1037.
50
[1971] 1 O.R. 591 (Ont. Prov. Ct. 1970).
51
[1970] 3 O.R. 780 (Ont. Prov. Ct.).
52
See id. at 780–82.
53
Green, [1971] 1 O.R. at 592.
54
Id. at 591.
55
Id. at 597.
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resulted in acquittals, their dicta laid the foundation for successful subse-
quent prosecutions.
56
One such successful prosecution was the 1988 conviction of Dino
Ciccarelli of the Minnesota North Stars.
57
The conviction was the result
of an assault in which Ciccarelli hit the Toronto Maple Leafs’ Luke
Richardson twice in the head with his stick and then punched him in the
mouth.
58
Ciccarelli was sentenced to one day in jail and fined $1,000.
59
This case marked the first jail sentence ever imposed on a professional
athlete for an act of during-the-game violence.
60
The judge who imposed
the sentence proclaimed that “[i]t is time now that a message go out from
the courts that violence in a hockey game or any other circumstances is
not acceptable in our society . . . [for it] spills over from the arena into
the streets.”
61
More recently, the Boston Bruins’ Marty McSorley was convicted
of assaulting the Vancouver Canucks’ Donald Brashear in 2000. The
two had fought earlier during play, and in the waning seconds of the
game and with his team losing 5-2, McSorley slashed Brashear in the
head with his stick, knocking him unconscious to the ice.
62
Brashear
suffered a grand mal seizure before regaining consciousness, was diag-
nosed with a grade-three concussion, and could not engage in physical
activity for a month.
63
During the bench trial, McSorley claimed that the
blow had not landed as intended and had been directed instead to
Brashear’s shoulder. However, the trial judge disagreed, stating that
“[a]n NHL player would never, ever miss. Brashear was struck as in-
tended.”
64
McSorley was found guilty of assault and placed on probation
for eighteen months.
65
The success of Canadian prosecutions for sports violence presents
encouraging evidence that such prosecutions are viable, even for actions
committed by professional athletes. Certainly, the development of crimi-
56
Nielsen, supra note 5, at 703.
57
Carroll, supra note 22, at 80 (citing M
INNEAPOLIS
S
TAR
T
RIBUNE
, Aug. 25, 1988, at
1C). Ciccarelli subsequently appealed his conviction and lost. Regina v. Ciccarelli, [1990] 54
C.C.C.3d 121 (Ont. Dist. Ct. 1989).
58
Carroll, supra note 22, at 80.
59
Id. The NHL also suspended Ciccarelli for ten days, costing him $25,000 in salary.
60
Nielsen, supra note 5, at 703.
61
Id. (citing Tom Callahan, Spilling Over into the Streets, T
IME
, Sept. 5, 1988, at 47).
62
Regina v. McSorley, 2000 BCPC 116, at para. 7 (B.C. Prov. Ct.) (reasons for
judgment).
63
Id. at para. 59.
64
Id. at para. 108. In dictum, the court suggested that it likely would not have accepted
the consent defense even if it had found that McSorley intended to hit Brashear in the shoulder
rather than the head. Id. at para. 75.
65
Regina v. McSorley, 2000 BCPC 117, at para. 21 (B.C. Prov. Ct.) (reasons on sen-
tence). McSorley’s conditional discharge carried the additional requirement that he not engage
in any sporting event in which Donald Brashear played on the opposing team. Id.
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nal prosecutions in an arena of human interaction previously largely un-
scrutinized does not come without some doctrinal rough spots to be
worked out. Although the Canadian courts have not attained a united
doctrine for sports assault, they have reached majority positions and es-
tablished helpful lines of judicial analysis.
66
B. A
MERICAN
F
OUNDATIONS
In 1980, U.S. Rep. Ronald Mottl of Ohio, a former professional
baseball player, introduced the Sports Violence Act of 1980.
67
The bill
proposed criminal penalties to deter and punish acts of “excessive physi-
cal force” in sports.
68
Mottl argued that “a line can be drawn to serve
notice on the professional sports world that extreme acts of excessive
violence on the field are as repugnant as street-corner muggings.”
69
He
added, “When a hockey player slams his stick over the head of an oppo-
nent or a basketball player smashes the face of an opponent with his fist,
it is not sport.”
70
Despite Mottl’s laudatory goals, the bill failed.
71
Leg-
islators expressed the opinion that the problem of sports violence could
best be handled at the local prosecutorial level.
72
Prosecutors and law
66
See White, supra note 46, at 1053; Svoranos, supra note 7, at 507. See infra Section
III.A.3 for a discussion of the development of the Canadian doctrine of consent, upon which
many cases ultimately turn.
67
H.R. 7903, 96th Cong. (1980). See Scott Slonim, Goal of Crime Bill to Curb Sports
Violence, 66 A.B.A. J. 1188, 1188 (1980). An earlier federal legislative effort, the Federal
Sports Act, S. 3445, 92d Cong. (1972), had been proposed but failed in 1972. Linda S. Calvert
Hanson & Craig Dernis, Revisiting Excessive Violence in the Professional Sports Arena:
Changes in the Past Twenty Years?, 6 S
ETON
H
ALL
J. S
PORT
L. 127, 150 & n.124 (1996).
68
See Slonim, supra note 67, at 1188.
69
Id. at 1188–89.
70
Id. at 1189.
71
See Nielsen, supra note 5, at 694. Overly vague language was a major reason for the
bill’s failure. Id. at 691. One critic also noted that the bill used circular definitions and created
confusion about traditional professional-amateur distinctions. See Daniel R. Karon, Winning
Isn’t Everything, It’s the Only Thing. Violence in Professional Sports: The Need for Federal
Regulation and Criminal Sanctions, 25 I
ND
. L. R
EV
. 147, 161–62 (1991).
72
See Nielsen, supra note 5, at 694. Subsequent bills concerning sports violence, pro-
moted by Mottl in 1981 and Tom Daschle of South Dakota in 1983, also failed. Hanson &
Dernis, supra note 67, at 150. Similar proposals have also failed in several states, including
Washington and Massachusetts. See Tom Farrey, Violence in Sports — Jason Shelley’s Unu-
sual Case, S
EATTLE
T
IMES
, Oct. 17, 1993, at C1; Hanson & Dernis, supra note 67, at 150–51.
Iowa has adopted a standard for sports assault similar to the Model Penal Code’s standard (see
infra Section III.A.2). The Iowa law holds athletes criminally liable for acts that are not rea-
sonably foreseeable consequences of voluntary participation and that create unreasonable risks
of injury or breach of the peace. I
OWA
C
ODE
§ 708.1 (2002). Legislative proposals seeking to
protect sports officials have been more successful. See, e.g., Carol J. Wallace, The Men in
Black and Blue: A Comment on Violence Against Sports Officials and State Legislative Action,
6 S
ETON
H
ALL
J. S
PORT
L. 341, 355 (1996); Troy Cross, Special Report: Assaults on Sports
Officials, 8 M
ARQ
. S
PORTS
L.J. 429, 433 (1998).
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enforcement personnel tend to agree that local prosecution under existing
assault and battery doctrines is the most appropriate answer.
73
The Canadian experience with sports prosecutions gives American
jurisdictions valuable guidelines for imposing criminal sanctions on vio-
lent sports participants. Furthermore, foundations for American prosecu-
tions, although limited, do exist. Research of reported cases reveals at
least a handful of opinions on prosecutions for player-on-player violence.
In People v. Jones, decided in Illinois in 1976, the defendant was
convicted for violent acts that occurred in the context of a high school
touch football game.
74
The defendant had roughed up the victim
throughout the game, often violating the touch football rules.
75
The vic-
tim testified that at the end of the game, he placed his hand on the defen-
dant’s shoulder and was preparing to tell the defendant not to pick on
him any more when the defendant whirled around and punched the vic-
tim in the face, breaking his nose.
76
The defendant unsuccessfully
claimed self-defense, testifying that he anticipated that the victim was
going to hit him first.
77
The jury determined that the defendant did not
reasonably believe he needed to defend himself, and the appellate court
affirmed.
78
Although the court did not analyze public policy issues re-
garding sports violence, it made a significant inroad into the doctrine of
self-defense in sports: The court held that evidence that the defendant
“roughed up” the victim in violation of the game rules justified jury in-
structions that a defendant’s use of force is unjustified when the defen-
dant provokes attack on himself with intent to use it as an excuse to
inflict bodily harm.
79
In People v. Freer, a 1976 New York case, the defendant was con-
victed of third-degree assault after an incident during a game of tackle
football.
80
While the victim was making a legal tackle of the defendant,
the victim punched the defendant in the throat.
81
After the tackle, there
was a pileup, and after the other players got up, the defendant punched
the victim in the eye, causing extensive injury.
82
The Freer court began
its analysis by recognizing that sports violence is a “gray” area in the law
73
Nielsen, supra note 5, at 694 & n.85.
74
People v. Jones, 346 N.E.2d 389, 390 (Ill. App. Ct. 1976).
75
Id. at 391.
76
Id. at 390.
77
Id.
78
Id. at 392. The court affirmed the jury’s finding that the defendant’s self-defense
claim was unreliable because the defendant’s witnesses’ testimony was inconsistent with his
own as to the victim’s actions. Id.
79
Id. at 391.
80
People v. Freer, 381 N.Y.S.2d 976 (Suffolk County Dist. Ct. 1976).
81
Id. at 977.
82
Id.
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and that many questions remain unanswered.
83
In reaching its decision,
the court relied on both the Green and Maki Canadian decisions in as-
sessing the issues of consent and self-defense.
84
The court held that the
original punch to the throat by the victim was consented to by the defen-
dant as part of the game, since the act of tackling in a football game may
often involve legitimate contact that could easily be interpreted as a
punch.
85
However, the court held, the defendant’s punch to the eye was
an unmistakable act of intentional aggression and therefore could not
have been consented to.
86
On the issue of self-defense, the court found
that the defendant had not reasonably believed that he was vulnerable to
further attack.
87
The court based this finding on evidence showing that
when the defendant struck the victim, the defendant was up on one knee
over the victim, who was lying flat on his back.
88
This case provides a
valuable example of what acts a sports participant consents to when he
steps onto the field.
More than a decade passed before the next reported American cases
concerning criminal liability for participant-on-participant sports vio-
lence. In State v. Floyd
89
and State v. Shelley,
90
acts of criminal violence
occurred during recreational basketball games. In Floyd, the game had
been extremely rough, and one player had already been ejected for vio-
lent play.
91
After a fracas erupted on the court over a foul (and during a
timeout), the defendant, who was standing on the sideline, assaulted two
players from the opposing team who were also on the sideline and then
went onto the court and assaulted a third player.
92
Two of the assaulted
players suffered extensive injuries.
93
The defendant was convicted of as-
sault and appealed, arguing that he fell within Iowa’s exception from
assault for voluntary participants in sporting events.
94
The court held
that because the incidents occurred during a timeout, and because the
defendant and two of his victims had been on the sidelines, not playing at
the time, they were not “voluntary participants in a sport” at the time of
83
Id.
84
Id. at 978.
85
Id.
86
Id.
87
Id.
88
Id. at 979.
89
466 N.W.2d 919 (Iowa Ct. App. 1990).
90
929 P.2d 489 (Wash. Ct. App. 1997).
91
Floyd, 466 N.W.2d at 920.
92
Id. at 920–21.
93
Id. at 921.
94
Id. The Iowa consent-to-assault exception provides in relevant part “that where the
person doing any of the above enumerated acts [assaults], and such other person, are voluntary
participants in a sport, social or other activity, not in itself criminal, and such act is a reasona-
bly foreseeable incident of such sport or activity, and does not create an unreasonable risk of
serious injury or breach of peace, the act shall not be an assault.” I
OWA
C
ODE
§ 708(1) (2002).
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the incident, and therefore the exception was inapplicable.
95
The court
reasoned that there was simply “no nexus between the defendant’s acts
and playing the game of basketball.”
96
While the court rested its deci-
sion on this determination, it added in dicta that the defendant’s actions
were furthermore not a reasonably foreseeable incident of the sport and
created an unreasonable risk of serious injury or breach of the peace.
97
In Shelley, the defendant was playing in a pickup basketball game
and had been fouled by the victim throughout the game.
98
As the two
players were running down the court side by side, the defendant punched
the victim in the face, later claiming that the victim had made a waving
motion toward him with his hand.
99
The victim’s jaw was broken in
three places and had to be wired shut for about six weeks.
100
The trial
court rejected the defendant’s request to use jury instructions incorporat-
ing a “reasonably foreseeable hazard” standard for consent to assault by
sports participants.
101
The trial judge ruled that the defendant could not
claim consent because his conduct “exceeded what is considered within
the rules of that particular sport.”
102
The appellate court affirmed the
decision not to allow the defendant to claim consent but disagreed with
the rules-based standard that the trial court employed.
103
The appellate
court rejected that standard as too limiting and instead appeared to side
with the defendant by adopting the Model Penal Code’s standard that the
defendant’s conduct must be a “reasonably foreseeable hazard” of the
game.
104
However, applying the standard to the facts of the case, the
court found that even taking the defendant’s version of the events as true,
the assault was not reasonably foreseeable and therefore violated the
standard.
105
The court reasoned that “[t]here is nothing in the game of
basketball, or even rugby or hockey, that would permit consent as a de-
fense to such conduct.”
106
The only modern American prosecution of a professional
107
sports
figure for participant-on-participant violence during a game occurred in
95
Floyd, 466 N.W.2d at 922.
96
Id.
97
Id. at 923.
98
State v. Shelley, 929 P.2d 489, 490 (Wash. Ct. App. 1997).
99
Id.
100
Id.
101
Id. at 491.
102
Id.
103
Id. at 491–92.
104
Id.
105
Id. at 493.
106
Id.
107
In using the term “professional,” we refer to the primary professional leagues of the
sports examined in Section I, namely the National Football League, the National Basketball
Association, Major League Baseball, and the National Hockey League. We also consider only
prosecutions through trial (or plea agreement), rather than merely prosecutorial consideration
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the case of State v. Forbes.
108
During a 1975 NHL game between the
Boston Bruins and the Minnesota North Stars, David Forbes assaulted
Henry Boucha, causing permanent injury.
109
Forbes was indicted by a
Minnesota grand jury, which charged him with aggravated assault by use
of a dangerous weapon — his hockey stick.
110
At trial, the jurors heard
more than a week and a half of testimony,
111
including one witness who
testified that he heard Forbes say to his victim, “I’ll get you, but it won’t
be with this [his glove]. It’ll be with my stick; I’ll shove it down your
throat.”
112
The defense was denied an instruction on the doctrine of as-
sumption of risk; the court ruled that the doctrine applied solely to civil
cases.
113
The prosecution was granted an instruction that with respect to
the crime of aggravated assault, a person cannot consent either expressly
or by implication to be a victim of a crime.
114
After eighteen hours of
deliberation, the jury was split, nine in favor of conviction and three op-
posed, and a mistrial was declared.
115
The jurors who favored conviction
reported that they considered the severity of Boucha’s injury as disposi-
tive.
116
Those favoring acquittal remarked that the violence and fighting
or investigation of a case. There have been a number of successful American prosecutions of
minor-league professional players and college players. See, e.g., Jonathan H. Katz, Note,
From the Penalty Box to the Penitentiary — The People Versus Jesse Boulerice, 31 R
UTGERS
L.J. 833, 840–48 (2000); see also Violence in Sports, S
T
. P
ETERSBURG
T
IMES
(St. Petersburg,
Fla.), Feb. 24, 2000, at 10C.
In 1998, Jesse Boulerice, after a skirmish with Andrew Long during an Ontario Hockey
League game, “swung his hockey stick, in a baseball-style swing, at Long,” according to the
police report. Katz, supra, at 841. Long was knocked unconscious and suffered a brain contu-
sion, broken bones in his face, and a grade-three concussion. Id. The league suspended
Boulerice for one year. Id. at 842. Prosecutors in Michigan charged Boulerice with assault to
do great bodily harm less than murder, a felony. Id. at 843. In 1999, Boulerice pleaded no
contest to a reduced charge of aggravated assault, received three months’ probation, and had
the conviction expunged from his record. Sports, G
RAND
R
APIDS
P
RESS
(Grand Rapids,
Mich.), Aug. 10, 1999, at C8. (In 2002, the American Hockey League suspended Boulerice
for eight games for instigating a fight. Activity, G
LOBE
& M
AIL
(Toronto), Mar. 21, 2002, at
S4.)
In 1998, Jason MacIntyre pleaded guilty to third-degree assault for slashing an opponent
in the face between periods of a West Coast Hockey League game. Katz, supra, at 847.
MacIntyre was placed on probation for two years, fined $500, and ordered to complete an
anger-management course. The league also banned him for life. Id. at 848.
108
No. 63,280 (Hennepin County, Minn., Dist. Ct. Aug. 12, 1975) (entering judgment of
mistrial).
109
See David Ranii, Sports Violence Lawsuits Erupt: Criminal Law Next?, N
AT
’
L
L.J.,
Feb. 9, 1981, at 1.
110
See Nielsen, supra note 5, at 701–02.
111
Id. at 702.
112
Gilles L´etourneau & Antoine Manganas, Violence in Sports: Evidentiary Problems in
Criminal Prosecutions, 16 O
SGOODE
H
ALL
L.J. 577, 580 (1978) (citing Walter Kuhlmann,
Violence in Professional Sports, 1976 W
IS
. L. R
EV
. 771, 773 n.14).
113
See Flakne & Caplan, supra note 3, at 34.
114
Id.
115
Id.
116
See Nielsen, supra note 5, at 702.
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in hockey made the attack just part of the game.
117
State officials de-
cided not to retry the case because they felt they had made it clear that
excessive sports violence would not be tolerated in Minnesota and be-
cause there was a likelihood of another deadlocked jury.
118
These reported American cases demonstrate that sports violence
convictions are feasible and provide valuable doctrinal guidelines.
Forbes’ 9-3 split in favor of conviction shows that jurors are willing to
hold professional sports figures accountable for their actions in the ath-
letic arena. Moreover, the professional sports community has shown it is
ready to accept criminal prosecutions for excessive violence. Former
NHL president John Zeigler reacted to Dino Ciccarelli’s conviction by
stating that “[a]lthough we are disappointed with the outcome of this
case, it has long been our belief that sports are not above the law.”
119
III. SPORTS PROSECUTIONS: POTENTIAL DEFENSES
AND IMPEDIMENTS
The prospect of imposing criminal sanctions for acts of excessive
violence in sports does not come without obstacles. Several stumbling
blocks stand in the way of a successful sports prosecution. First and
foremost of these impediments is the doctrine of consent, which operates
as a full defense to the crime of assault and battery.
120
Other defenses
invoked by athlete defendants include self-defense, involuntary reflex,
and provocation. This section evaluates various interpretations of the
doctrine of consent and reviews the other defenses and extra-legal hin-
drances to effective criminal prosecution that might be encountered by
prosecutors.
A. T
HE
C
ONSENT
D
OCTRINE
If sports prosecutions for battery are to prosper, then courts must
fashion rules to govern the applicability of the consent defense to acts of
violence occurring in the context of sporting events. Courts and com-
mentators have attempted to promulgate a definitive interpretation of
117
Id. One of the jurors who voted for acquittal remarked, “Three of us . . . did not feel
[Forbes] intended to inflict any bodily harm.” This conclusion obviously runs counter to evi-
dence presented at trial showing that Forbes repeatedly slammed Boucha’s head into the ice.
Id.
118
See Flakne & Caplan, supra note 3, at 34.
119
Carroll, supra note 22, at 86.
120
See Rains, supra note 4, at 804 (summarizing W
AYNE
R. L
A
F
AVE
& A
USTIN
W.
S
COTT
, J
R
., C
RIMINAL
L
AW
81 (1972)). LaFave explains that the terms “assault” and “assault
and battery” are often used in the law to denote what battery means. Technically, battery
requires injury or touching whereas assault needs (and affirmatively requires) no physical con-
tact. Hence, battery produces a specified harmful result, while assault requires merely mental
apprehension of such by the victim (for example, an intentional frightening or attempted bat-
tery). See W
AYNE
R. L
A
F
AVE
, C
RIMINAL
L
AW
736–37 (3d ed. 2000).
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consent as it applies to athletic contests and have yielded three general
principles.
121
First, sports serve a social utility, and this utility should
play into the doctrine of consent.
122
It is this component of consent’s
application to sports that courts often cite in not allowing defendants to
invoke the defense of consent in non-sports-related assaults.
123
Second,
although battery can be consented to by an individual in a civil case,
criminal battery cannot be consented to by the victim, because the state
has a general interest in the well-being of its citizens; therefore, consent
is implied generally rather than explicitly granted and typically turns on
objective criteria surrounding the incident rather than on a determination
of the subjective willingness of the victim.
124
Third, courts are typically
much more willing to allow the defense of consent in situations in which
the battery occurred during official play rather than at the end of play or
during a timeout.
125
Several notable interpretations of the doctrine of
criminal consent in sports contests are described below.
1. Violation-of-the-Game-Rules Theory of Consent
Under this theory, a participant in an athletic contest manifests a
willingness to submit to such bodily contacts as permitted by its rules.
126
The participant does not consent to contacts prohibited by the rules of the
game, if the rules are designed to protect the participants and not merely
to secure a better-played game.
127
The Regina v. Green court likely
would disagree with this theory, maintaining that contact in violation of
the rules is consented to by participants, at least where it is common and
does not create a high risk of injury.
128
As the court in Shelley reasoned,
121
See, e.g., John J. Love, Criminal Law: Consent as a Defense to Criminal Battery —
The Problem of Athletic Contests, 28 O
KLA
. L. R
EV
. 840, 843–44 (1975); Karon, supra note
71, at 161–62.
122
See H
ORROW
, supra note 12, at 206–11.
123
See, e.g., Helton v. State, 624 N.E.2d 499, 506, 514 (Ind. Ct. App. 1993) (gang initia-
tion beating); People v. Lenti, 253 N.Y.S.2d 9, 14–15 (Nassau County Ct. 1964) (school haz-
ing); State v. Hiott, 987 P.2d 135, 135–37 (Wash. Ct. App. 1999) (game in which youths shot
each other with BB guns). See also Cheryl Hanna, Sex Is Not a Sport: Consent and Violence
in Criminal Law, 42 B.C. L. R
EV
. 239, 250–54 (2001) (analyzing the application of sports
consent doctrine to sadomasochistic activity).
124
See Love, supra note 121, at 842 (citing J.H. Beale, Jr., Consent in the Criminal Law,
8 H
ARV
. L. R
EV
. 317, 324–25 (1895), who maintains: “Homicide, mayhem, and battery may
be committed, though the individual consented to the injury. The reason for this is clear: the
public has an interest in the personal safety of its citizens, and is injured where the safety of
any individual is threatened, whether by himself or another.”)
125
See White, supra note 46, at 1048–51. But cf. Regina v. Leyte, [1973] 13 C.C.C.2d
458, 459 (Ont. Prov. Ct.) (leaving open the possibility that players might consent to violence
after termination of play, in certain situations).
126
See H
ORROW
, supra note 12, at 171–76.
127
Id.
128
Regina v. Green, [1971] 1 O.R. 591, 594 (Ont. Prov. Ct. 1970).
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this standard is very limiting and unduly impinges on game play.
129
Cer-
tainly, some actions in violation of game safety rules (such as clipping in
football) are part and parcel of the game and are not necessarily indica-
tive of a player’s intent to injure an opponent. Indeed, it seems highly
unlikely that a jury would convict a player for violation of a game safety
rule where no serious injury had been suffered by the victim.
2. The Model Penal Code Standard
The Model Penal Code sets its standard for consent in sports in the
following manner:
Consent to Bodily Injury. When conduct is charged to
constitute an offense because it causes or threatens bod-
ily injury, consent to such conduct or to the infliction of
such injury is a defense if: . . . (b) the conduct and injury
are reasonably foreseeable hazards of joint participation
in a lawful athletic contest or competitive sport or other
concerted activity not forbidden by law.
130
Under this standard, if a player should have reasonably foreseen that
an act of violence could happen, then he consents to that act of violence.
Critics argue that the Model Penal Code’s position on consent is too
broad.
131
Although an athlete should reasonably foresee that an oppo-
nent might injure him, it does not necessarily follow that the athlete con-
sents to being injured in such a manner.
132
By analogy, a person who
walks through Central Park late at night should reasonably foresee that
he could very well be mugged. However, it is difficult to imagine that he
consented to a mugging, despite the fact that he voluntarily took the walk
and realized he might be attacked.
133
Undoubtedly, the determination of
exactly what behavior a player can reasonably expect in a game is diffi-
cult. The Shelley court explained that this determination might be made
by presenting evidence to the jury concerning the nature and location of
the game, along with game rules and the players’ own expectations.
134
Given the court’s ruling in Shelley, it is likely that the fact that an action
(e.g., a purposeful punch to the jaw) might occur occasionally in a game
does not necessarily mean that a court employing the Model Penal
Code’s standard would find it to be a reasonably foreseeable hazard of
129
State v. Shelley, 929 P.2d 489, 492 (Wash. Ct. App. 1997).
130
M
ODEL
P
ENAL
C
ODE
§ 2.11(2)(b) (1995).
131
See, e.g., Note, Consent in Criminal Law: Violence in Sports, 75 M
ICH
. L. R
EV
. 148,
159 (1976); Karon, supra note 71, at 153.
132
Karon, supra note 71, at 153.
133
Id. at 154.
134
Shelley, 929 P.2d at 493.
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the game.
135
Some have also argued that the Model Penal Code’s excep-
tion for sports contradicts the logic of statutes prohibiting dueling and
suicide pacts, under which a survivor is held criminally liable.
136
3. The Canadian Majority View
A traditional standard that Canadian courts have used to define the
limits on a player’s consent was originally articulated in 1965 in the civil
case of Agar v. Canning.
137
Agar held that “injuries inflicted in circum-
stances which show a definite resolve to cause serious injury to another,
even when there is provocation and in the heat of the game, should not
fall within the scope of the implied consent.”
138
This test quite reasona-
bly presupposes that the mission of athletic contests is to demonstrate
athletic skill, not harm opponents (with the possible exception of box-
ing). This standard was cited with approval by the Ontario court in the
seminal Maki
139
case, among others.
140
Although Agar’s holding is
laudable in that it focuses on the manifested intentions of the players, it
has been criticized as being underinclusive
141
and may be difficult for
jurors to apply in cases in which the actions occur rapidly and within a
broader interaction (such as a bench-clearing brawl).
Over time, the Canadian courts have refined their analysis of con-
sent in sports, and although no specific overarching test prevails, genera-
lized approaches and precedential norms have emerged. In Regina v.
Cey,
142
the Saskatchewan Court of Appeal set forth important doctrinal
guidance for Canadian courts in the area of sports consent. The Cey
court explained that subjective consent is unworkable and inappropriate
in the team sport context and that implied consent must be uniform and
determined by specified objective criteria.
143
Cey and its progeny have
135
But cf. Karon, supra note 71, at 153 (arguing that the Model Penal Code’s approach
would allow consent for the violent fisticuffs and stick fighting customarily associated with
hockey).
136
See Note, supra note 131, at 159 n.39. The author explains that when dueling was
legal, a challenged gentleman usually did not want to duel but was compelled because of
existing social conceptions of honor. By convicting a few men for dueling, the state was able
to make clear that dueling was not an honorable or acceptable practice. It is important to bear
in mind that sports are generally considered to involve a degree of social utility, while most
would agree that dueling does not. However, the author aptly notes that success in criminal
prosecutions for socially undesirable behavior (such as dueling) could be applied to sports
such as hockey, in which players are compelled to fight out of sports-based conceptions of
honor. Id.
137
[1965] 54 W.W.R. 302 (Man. Q.B.), aff’d, [1966] 55 W.W.R. 384 (Man. Ct. App.).
138
Agar, [1965] 54 W.W.R. at 304.
139
Regina v. Maki, [1970] 3 O.R. 780, 783 (Ont. Prov. Ct.).
140
White, supra note 46, at 1041.
141
Id. See also Regina v. Leclerc, [1991] 4 O.R.3d 788 (Ont. Ct. App.) (finding that the
Agar standard does not hold some conduct accountable that should yield criminal liability).
142
[1989] 75 Sask. R. 53 (Sask. Ct. App.).
143
Id. at para. 19.
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developed the following noninclusive guidelines for determining whether
implied consent applies in a given situation:
a. The conditions under which the game in question is
played;
144
b. The nature of the act;
145
c. The extent of the force;
146
d. The degree of risk of injury and the probabilities of
serious harm;
147
e. The state of mind of the accused;
148
f. Whether the rules of the game contemplate contact;
149
g. Whether the action was an instinctive reflex
reaction;
150
h. Whether the action was closely related to play;
151
and
i. Whether the action fell within the customary norms
and rules of the game.
152
While these criteria do not furnish a bright-line rule, they provide a com-
mon basis for courts to analyze sports violence and to establish the pa-
rameters of implied consent.
153
4. The German Approach
A final noteworthy attempt at integrating the consent doctrine with
sports contests is the principle advanced by German scholars termed
sozialadaquanz.
154
This axiom holds that individuals should not be
forced to tolerate the infliction of harm by others merely because they
have “consented” in the sense of demonstrating a willingness to risk such
harm.
155
However, this rule is tempered by the corollary precept that
individuals must tolerate certain harms so that socially beneficial actions
144
Id. at para. 23.
145
Id.
146
Id.
147
Id.
148
See id. at para. 24. The Cey court did not specifically note the state of mind of the
accused in its listing of criteria, although it notes it as a relevant factor on the issue of consent.
Other courts have listed state of mind along with the other criteria. See, e.g., Regina v. Cic-
carelli, [1989] 54 C.C.C.3d 121, 126 (Ont. Dist. Ct.); Regina v. Anderson, [2000] 48
W.C.B.2d 193 (B.C. Sup. Ct.).
149
Regina v. Leclerc, [1991] 4 O.R.3d 788, para. 22 (Ont. Ct. App.)
150
Regina v. Krzysztofik, [1992] 16 W.C.B.2d 7, para. 11 (Man. Q.B.).
151
Id. at para. 12.
152
Id. at para. 13.
153
See Regina v. Jobidon, [1991] 2 S.C.R. 714 (Can.) (distinguishing fistfights from
sports and finding no implied consent to the former, an activity lacking sports’ significant
social value).
154
See Note, supra note 131, at 155. The concept can be translated roughly as “social
adequacy.”
155
Id.
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(such as sports contests) may occur.
156
Thus, the German approach does
not endeavor to determine whether the victim actually consented but in-
stead focuses on what inconveniences society will require individuals to
tolerate.
157
The legal standard that sozialadaquanz promulgates can be
summarized as follows:
a. A player consents only to that conduct that is part of
the game.
b. “Part of the game” includes only conduct that either:
i. is consonant with the ideal of the game; or
ii. is an unavoidable concomitant of playing the
game with an attitude that is consistent with the
ideal of the game.
c. Conduct that is inconsistent with society’s standards
as to how the game is played is not “part of the
game.”
158
Of course, societal conceptions of how the game should be played are
typically undefined, so the standard is somewhat ambiguous. However,
the premise that society can mandate how a game will be played is not
without precedent. As mentioned previously, football almost met its de-
mise at the turn of the twentieth century due to its violent play. President
Roosevelt’s threat to abolish football caused colleges to revise the stan-
dards of play, and the game was made much safer. This experience
shows how a standard based on society’s view of the “ideal of the game”
can be used to distinguish effective from ineffective consent and permis-
sible from impermissible conduct.
159
B. O
THER
D
EFENSES TO
B
ATTERY
Although consent continues to be the most used defense to criminal
battery in sports, other defenses are available and have been used suc-
cessfully by athlete defendants. Some of the defenses to battery that can
be used in sports violence cases are self-defense, involuntary reflex, and
provocation. Certainly, the applicability and success of any of these de-
fenses depends largely on the specific facts of a given sports violence
case, and some defenses have generally proven to be more successful
than others. In this section we outline these defenses and their
limitations.
156
Id. at 160 (explaining that “the athlete is a member of a smaller society or ‘the game’
and he is expected to suffer certain inconveniences (injuries) so that the game may be played.
The game, however, is a part of the larger society, and it must necessarily conform to the
standards of that society”).
157
Id. at 155.
158
Id. at 160.
159
Id. at 177.
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1. Self-Defense
An athlete who acts in self-defense against an unlawful attack has a
successful defense against battery.
160
An athlete may also use force to
defend another.
161
However, several restrictions apply to this defense.
First, an athlete may meet force with force only so long as an apparent
danger is still present.
162
Second, self-defense is not proper if the blow is
unnecessarily severe and vindictive rather than preventive.
163
Third, the
athlete may use force only when it is unreasonable to retreat or otherwise
avoid the danger.
164
Although this defense is not often effective due to
its limitations, it was successfully employed in Regina v. Maki. In find-
ing the defendant’s self-defense viable, the court stated:
[O]n a charge of this sort there must be an acquittal if the
Court is left in any doubt as to whether the accused was
acting in self-defence, that is, where self-defence is
raised as a defence. The Court must also consider the
reasonableness of the force used under the circumstances
and the state of mind of the accused at the time in
question.
165
Maki represents a situation in which the actions of the parties occurrs
quickly and furiously and in which it is hard to determine who was the
initial aggressor. Although the Maki court resolved to scrutinize the fight
and find self-defense, one commentator has noted that mutual fighting
essentially nullifies self-defense.
166
2. Involuntary Reflex
When a defendant strikes a blow that is the product of an involun-
tary reflex and lacks the requisite mens rea, he will not be guilty of bat-
tery.
167
In Regina v. Green, the court held that Green’s stick chop to
Maki’s shoulder was not an assault, reasoning that it was essentially an
“instinctive” reaction to a prior blow from Maki.
168
This defense was
160
Horrow, supra note 14, at 11.
161
Hechter, supra note 2, at 452 (adding that an athlete’s right to defend another is no
greater than his right to defend himself).
162
Id. at 451.
163
Horrow, supra note 14, at 11.
164
Id. at 12.
165
Regina v. Maki, [1970] 3 O.R. 780, 783 (Ont. Prov. Ct.).
166
See Hechter, supra note 2, at 450 (arguing that “[m]utual fight and self-defense are not
synonymous, and generally speaking, self-defense does not avail in cases of mutual combat as
each party is guilty of a separate assault and battery upon the other”).
167
Horrow, supra note 14, at 11.
168
Regina v. Green, [1971] 1 O.R. 591, 597 (Ont. Prov. Ct.); see also Regina v. Leclerc,
[1991] 4 O.R.3d 788, 798 (Ont. Ct. App.) (finding that defendant’s cross-check in a non-
contact game was not an assault but rather an “instinctive reflex action”).
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raised in the Forbes trial, in which it was argued that violence in sports
starts at an early age and that the emotional nature of sports often induces
players to lose control.
169
Sports attorney Bob Woolf criticizes the in-
voluntary reflex defense, arguing that “heat of the game has always been
a kind of moral defense in sports to excuse bad manners and irrational
acts.”
170
3. Provocation
The defense of provocation requires that the defendant be provoked
into retaliation.
171
This defense is seldom used in sports cases, because
many jurisdictions do not recognize it as a defense to battery in any con-
text.
172
The common-law basis for rejecting this defense is the policy
that peace and order are adversely affected when individuals take the law
into their own hands to right wrongs.
173
However, courts may be in-
clined to consider provocation in determining a just punishment for those
convicted of battery.
174
C. E
XTRA
-L
EGAL
O
BSTACLES
Finally, there are less tangible, extra-legal obstacles that may cause
prosecutors to think twice before bringing a sports violence prosecution.
First, player victims and witnesses may be reluctant to testify or cooper-
ate due to existing player “codes” that consider violence part of the game
and not appropriate for outside legal intervention.
175
Furthermore, a
prosecutor may be concerned that prosecutions for sports violence may
not reflect the sentiments and priorities of the public he serves.
176
Fi-
nally, given the heavy load of regular cases that many prosecutors expe-
rience and the legal stumbling blocks to getting a conviction outlined
above, sports violence cases may represent a heavy expenditure of time
169
State v. Forbes, No. 63,280 (Hennepin County, Minn., Dist. Ct. Aug. 12, 1975) (enter-
ing judgment of mistrial).
170
W
OOLF
, supra note 31, at 141.
171
H
ORROW
, supra note 12, at 200.
172
Id.
173
Hechter, supra note 2, at 453.
174
Id.
175
Katz, supra note 107, at 855–56.
176
This nonlegal concern may nonetheless be a veritable one for a prosecutor facing
reelection. This might hold especially true if a case involved the prosecution of a local sports
celebrity. Similarly, there may be concerns about conducting a fair trial in a case in which an
opposing player was prosecuted for assaulting a local favorite. Karon also maintains that some
prosecutors might be reluctant to bring sports violence cases because of the “community sub-
group rationale,” which posits that illegal activity pervasive within a particular subgroup of
society should be tolerated. Karon, supra note 71, at 155–57 (citing W
AYNE
R. L
A
F
AVE
,
A
RREST
: T
HE
D
ECISION TO
T
AKE A
S
USPECT INTO
C
USTODY
110 (Frank J. Remington ed.,
1965)).
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and resources for a prosecutor with a highly uncertain return on the
investment.
CONCLUSION
The threat that violence in sports poses to our society through its
long-term influence on youths and spectators is unmistakable. Conse-
quently, it is imperative that some responsible entity take measures to
abate the unnecessary violence that has pervaded the world of sports.
When internal league regulation ceases to adequately curb the problem,
other methods are needed. Criminal prosecutions can be an effective
means by which to send the message that society will not tolerate acts of
unnecessary violence by sports participants. Critics of sports prosecu-
tions contend that criminal sanctions for sports violence will bring about
the downfall of sports, as participants will feel constrained from playing
with vigor due to the threat of prosecution.
177
This criticism, however,
relies on the assumption that the state will prosecute every technical
sports battery rather than only the most egregious attacks.
178
The key to
solving the problem of excessive sports violence through criminal prose-
cutions is in symbolic prosecution. Certainly, no social benefit is at-
tained through the excessive acts of violence displayed by Marty
McSorley and Kermit Washington. It is these types of brutal acts that are
suitable for criminal prosecution. In the end, it is the proper discretion of
the local prosecutor that is tantamount in order to attain a successful bal-
ance between allowing sports to be played with intensity and vigor and
protecting society and players from unnecessary violence.
177
See, e.g., Richard L. Binder, Comment, The Consent Defense: Sports, Violence, and
the Criminal Law, 13 A
M
. C
RIM
. L. R
EV
. 235, 244–45 (1975).
178
See Nielsen, supra note 5, at 707.
