Bertuzzi Suspended for Rest of Season, All of Playoffs: Todd Bertuzzi of the Vancouver Canucks was suspended today for the remainder of the regular season and all of the playoffs for his attack on Colorado's Steve Moore. Bertuzzi's eligibility for next season will be evaluated by NHL Commissioner Gary Bettman later this summer.
Is this penalty sufficient for the act? Or should there also be legal liability, in tort or under the criminal system? Post your comments and weigh in on this debate.
Thursday, March 11, 2004
Wednesday, March 10, 2004
Should There be Criminal Liability for On-Field Actions?: At a game Monday between the Colorado Avalanche and the Vancouver Canucks, All-Star forward Todd Bertuzzi skated up from behind Avs player Steve Moore and delivered a violent sucker punch to the side of the head. The attack, in retribution for a hit Moore put on Canucks captain Markus Naslund, broke Moore's neck and gave him a concussion, one of the most serious injuries ever inflicted during a hockey fight.
As expected, the incident has caused considerable uproar, with some commentators calling for a one-year suspension of Bertuzzi. In addition, the Vancouver police has begun an investigation into the attack, and is deciding whether to bring criminal charges against Bertuzzi. But should professional athletes be subject to criminal prosecution for acts during the game?
Clearly, the answer is "not always." Hockey players routinely fight with one another, often leaving with broken noses, bloody lips or missing teeth. A batter hit by a pitch in baseball may charge the mound, trying to land a good punch on the opposing pitcher. A linebacker in football may be suspended for several games for going after an opposing quarterback's head. None of these incidents lead to criminal liability. Traditionally, only when an athlete goes outside the field of play or attacks a non-athlete (Dennis Rodman kicking a cameraman, a player going into the stands), do the local authorities step in. Fighting is seen, rightly or wrongly, as part of the game, and the players assume the risk of the game when they step onto the field.
But at some point, actions have to be seen as crossing the line. Clearly, if a player hacked another repeatedly with his bat or stick, with a clear intention to cause serious injury or death, this would not be seen as part of the game. But how much different is this than mercilessly punching an opponent? The current incident is in the gray area between "part of the game" and criminal activity. In fact, this incident only received attention because of the seriousness of Moore's injury. Had he suffered only a broken nose or bloody lip, would the Vancouver police really be investigating? But, as Vosburg teaches first year law students, you take your victim as you find them. A tortfeasor is responsible for any injuries resulting from a malicious act, no matter how unforeseen.
Hockey, unfortunately, is not a stranger to the idea of criminal liability. In 2002, Boston Bruin Marty McSorley was criminally prosecuted for a violent slash to the face of Vancouver player Donald Brashear. Up until now, McSorley received the harshest punishment in NHL history, a one-year ban, which in effect ended his playing career. In addition, he was convicted of assault in a British Columbia court and given 18 months conditional discharge (similar to probation). The prosecution was seen by many, however, as setting a dangerous precedent of taking disputes off the ice, where they belong.
On one hand, what happens on the field of play should remain on the field of play. Would Bertuzzi have attacked Moore on the street? Absolutely not. It was purely a hockey move -- you hurt one of ours, we hurt you. Leagues have numerous ways of dealing with such incidents, including suspensions without pay, heavy fines, and in some cases, banishment. However, the powerful players unions often fight such penalties, reducing their overall effectiveness, such as when Latrell Sprewell's suspension was reduced from one year after he choked his coach during a practice. In these cases, the legal system could step in and ensure that vicious attacks do not go unpunished under the guise of "part of the game." As players grow stronger and the possibility of serious injury increases, sports and the law should examine the dividing line and devise a system that protects both the integrity of the game, and more importantly, the safety of the players.
As expected, the incident has caused considerable uproar, with some commentators calling for a one-year suspension of Bertuzzi. In addition, the Vancouver police has begun an investigation into the attack, and is deciding whether to bring criminal charges against Bertuzzi. But should professional athletes be subject to criminal prosecution for acts during the game?
Clearly, the answer is "not always." Hockey players routinely fight with one another, often leaving with broken noses, bloody lips or missing teeth. A batter hit by a pitch in baseball may charge the mound, trying to land a good punch on the opposing pitcher. A linebacker in football may be suspended for several games for going after an opposing quarterback's head. None of these incidents lead to criminal liability. Traditionally, only when an athlete goes outside the field of play or attacks a non-athlete (Dennis Rodman kicking a cameraman, a player going into the stands), do the local authorities step in. Fighting is seen, rightly or wrongly, as part of the game, and the players assume the risk of the game when they step onto the field.
But at some point, actions have to be seen as crossing the line. Clearly, if a player hacked another repeatedly with his bat or stick, with a clear intention to cause serious injury or death, this would not be seen as part of the game. But how much different is this than mercilessly punching an opponent? The current incident is in the gray area between "part of the game" and criminal activity. In fact, this incident only received attention because of the seriousness of Moore's injury. Had he suffered only a broken nose or bloody lip, would the Vancouver police really be investigating? But, as Vosburg teaches first year law students, you take your victim as you find them. A tortfeasor is responsible for any injuries resulting from a malicious act, no matter how unforeseen.
Hockey, unfortunately, is not a stranger to the idea of criminal liability. In 2002, Boston Bruin Marty McSorley was criminally prosecuted for a violent slash to the face of Vancouver player Donald Brashear. Up until now, McSorley received the harshest punishment in NHL history, a one-year ban, which in effect ended his playing career. In addition, he was convicted of assault in a British Columbia court and given 18 months conditional discharge (similar to probation). The prosecution was seen by many, however, as setting a dangerous precedent of taking disputes off the ice, where they belong.
On one hand, what happens on the field of play should remain on the field of play. Would Bertuzzi have attacked Moore on the street? Absolutely not. It was purely a hockey move -- you hurt one of ours, we hurt you. Leagues have numerous ways of dealing with such incidents, including suspensions without pay, heavy fines, and in some cases, banishment. However, the powerful players unions often fight such penalties, reducing their overall effectiveness, such as when Latrell Sprewell's suspension was reduced from one year after he choked his coach during a practice. In these cases, the legal system could step in and ensure that vicious attacks do not go unpunished under the guise of "part of the game." As players grow stronger and the possibility of serious injury increases, sports and the law should examine the dividing line and devise a system that protects both the integrity of the game, and more importantly, the safety of the players.
Still More on Rushing the Court: In an update to this earlier essay and previous update, Dan Steinberg of the Washington Post writes on the dangers of rushing the court. He adds many more stories of injuries that have occurred, including members of the media being trampled, opposing players being punched and students attempting to get on the floor tripping and being crushed by the "human stampede."
Schools have taken various measures to try and either prevent the practice, or if that is impossible, to make it safer. Some schools user barriers such as bicycle racks, chains, or police barriers, but other schools have taken these down because they do not prevent the onslaught, only making it more dangerous. Some schools, such as the University of Florida, have taken the step I proposed, and begun disciplining students that run onto the floor. Students can be arrested and risk losing their tickets for the remainder of the season.
Also, what role does the media play in this? Athletic officials at some schools claim that students run onto the court only to get on television, and if stations such as ESPN stopped showing the students on the court, it would not continue. ESPN claims that it is not responsible for creating the postgame scenes, but I don't think this tells the entire story. Sports broadcasters also are not responsible for creating streakers or single fans that run onto the field of play, but they have a gentlemen's agreement to turn their cameras away to discourage the practice.
Rushing the court, however, is different in two other ways. One, unlike the solitary streaker, it is nearly impossible to make out any one student in the mob scenes. A student is much more likely to be shown in the stands during the game than in a mob at center court afterwards. This leads in to the second point, which is that students do not do this to get on television. The reasons for rushing the court, by and large, are to celebrate with the team and feel like you are part of the action. Many coaches like to describe their student sections as the "6th Man," and students want to celebrate on "their" home floor. This being said, a number of students have probably gotten the idea from watching other students rush the floor on ESPN or other college basketball networks, so the influence of the media should not be discounted.
The crux of this article, though, is that people have begun to get hurt. As I pointed out earlier, this could result in legal liability for universities, so as the problem receives greater media attention, expect more schools and arenas to begin cracking down on the practice and for "rushing the court" to become a part of history.
Thank you to reader John Stoner, a fellow Duke alum, for the pointer.
Schools have taken various measures to try and either prevent the practice, or if that is impossible, to make it safer. Some schools user barriers such as bicycle racks, chains, or police barriers, but other schools have taken these down because they do not prevent the onslaught, only making it more dangerous. Some schools, such as the University of Florida, have taken the step I proposed, and begun disciplining students that run onto the floor. Students can be arrested and risk losing their tickets for the remainder of the season.
Also, what role does the media play in this? Athletic officials at some schools claim that students run onto the court only to get on television, and if stations such as ESPN stopped showing the students on the court, it would not continue. ESPN claims that it is not responsible for creating the postgame scenes, but I don't think this tells the entire story. Sports broadcasters also are not responsible for creating streakers or single fans that run onto the field of play, but they have a gentlemen's agreement to turn their cameras away to discourage the practice.
Rushing the court, however, is different in two other ways. One, unlike the solitary streaker, it is nearly impossible to make out any one student in the mob scenes. A student is much more likely to be shown in the stands during the game than in a mob at center court afterwards. This leads in to the second point, which is that students do not do this to get on television. The reasons for rushing the court, by and large, are to celebrate with the team and feel like you are part of the action. Many coaches like to describe their student sections as the "6th Man," and students want to celebrate on "their" home floor. This being said, a number of students have probably gotten the idea from watching other students rush the floor on ESPN or other college basketball networks, so the influence of the media should not be discounted.
The crux of this article, though, is that people have begun to get hurt. As I pointed out earlier, this could result in legal liability for universities, so as the problem receives greater media attention, expect more schools and arenas to begin cracking down on the practice and for "rushing the court" to become a part of history.
Thank you to reader John Stoner, a fellow Duke alum, for the pointer.
Tuesday, March 9, 2004
Baseball Fans Not Staying Away: The New York Times Murray Chase has an article on how there has been a surge of ticket sales in major league baseball.
This is yet another example that fans care much less about what players do on their own time and much more about what they do on the field. Major League Baseball lost its greatest number of fans, not because of any off-the-field scandal, after the strike in 1994, which took players off the field and cancelled the World Series. Fans have often responded to criminal allegations with cheers and not boos. The sports world has recently witnessed this phenomenon in the context of Kobe Bryant, who has been resoundly cheered in many arenas. Ray Lewis was charged with manslaughter, but Ravens fans continue to buy his jersey by the hundreds. Numerous professional athletes have been suspended for drug abuse, sanctioned for domestic battery and charged with driving under the influence. Does this matter? Not so long as the player continues to hit home runs, hit buzzer beaters and rush for 100 yards a game.
By and large, fans see the uniform and not the person underneath. They cheer #8 because of his spectacular plays, but do not care about what Kobe Bryant does in his spare time. They cheer the team to the victory, while looking past the fact that human beings with human problems comprise the victors. Now it seems that fans are willing to accept steroid use, so long as their heroes continue to hit monstrous home runs. This is a disturbing trend in sports, and ultimately, the victims will be the athletes themselves. Steroid abuse has been shown to have horrible consequences, even leading to serious illness and death, and the negative effects of newer drugs are not even known. Players may be leveraging their long-term health for current glory, and fans are willing accomplices by turning a blind eye to such abuse.
It is unclear how many professional athletes take performance-enhancing drugs. So long as the respective players unions continue to stonewall proposals for drug testing, no one will know the true extent of the problem. For the sake of their own members, unions should work closely with the leagues and health professionals to devise a system of drug testing, and perhaps more importantly, drug counseling. Players found to be addicted should be allowed counseling and treatment, all confidentially and all while they continue to play. No public stigmatization.embarrassmentsment. Only if the drug use continues should players be asked to take time off from the game.
Fans use sports as a diversion from real life, and because of this, tend to glorify the athletes and overlook their problems. However, while the fans, right or wrong, can afford to ignore this problem, the athletes and their representatives cannot. For the long-term good of both the players and the game, all of the interested parties should step forward to put an end to this epidemic.
What's wrong with these people who paid for tickets? Don't they know they should be boycotting baseball games? Baseball is full of cheaters, isn't it? Isn't that what the antisteroids squad would have you believe? But whatever the truth, fans all over the country, not just in Florida, are demonstrating that they don't care if some players have bulked up artificially.
This is yet another example that fans care much less about what players do on their own time and much more about what they do on the field. Major League Baseball lost its greatest number of fans, not because of any off-the-field scandal, after the strike in 1994, which took players off the field and cancelled the World Series. Fans have often responded to criminal allegations with cheers and not boos. The sports world has recently witnessed this phenomenon in the context of Kobe Bryant, who has been resoundly cheered in many arenas. Ray Lewis was charged with manslaughter, but Ravens fans continue to buy his jersey by the hundreds. Numerous professional athletes have been suspended for drug abuse, sanctioned for domestic battery and charged with driving under the influence. Does this matter? Not so long as the player continues to hit home runs, hit buzzer beaters and rush for 100 yards a game.
By and large, fans see the uniform and not the person underneath. They cheer #8 because of his spectacular plays, but do not care about what Kobe Bryant does in his spare time. They cheer the team to the victory, while looking past the fact that human beings with human problems comprise the victors. Now it seems that fans are willing to accept steroid use, so long as their heroes continue to hit monstrous home runs. This is a disturbing trend in sports, and ultimately, the victims will be the athletes themselves. Steroid abuse has been shown to have horrible consequences, even leading to serious illness and death, and the negative effects of newer drugs are not even known. Players may be leveraging their long-term health for current glory, and fans are willing accomplices by turning a blind eye to such abuse.
It is unclear how many professional athletes take performance-enhancing drugs. So long as the respective players unions continue to stonewall proposals for drug testing, no one will know the true extent of the problem. For the sake of their own members, unions should work closely with the leagues and health professionals to devise a system of drug testing, and perhaps more importantly, drug counseling. Players found to be addicted should be allowed counseling and treatment, all confidentially and all while they continue to play. No public stigmatization.embarrassmentsment. Only if the drug use continues should players be asked to take time off from the game.
Fans use sports as a diversion from real life, and because of this, tend to glorify the athletes and overlook their problems. However, while the fans, right or wrong, can afford to ignore this problem, the athletes and their representatives cannot. For the long-term good of both the players and the game, all of the interested parties should step forward to put an end to this epidemic.
News Update: Some quick hits on things you might have missed:
The Vin Baker arbitration hearing was held on Monday and the decision is expected on Thursday.
The NFL players union asked an arbitrator Tuesday to make Terrell Owens a free agent, claiming San Francisco didn't have the rights to trade the wide receiver to Baltimore. The arbitrator is Stephen Burbank of Penn Law School. You can read a previous rant here.
The NBA players union is not happy about a drug test that Damon Stoudamire took in an effort to clear his name. Dan Wasserman, a union spokesman, said: "In general we don't think it's a good idea for players to engage in freelance drug testing. We have procedures in place that should be adhered to." I understand the problems with unsupervised drug testing, but it seems that in the current times, players unions should be encouraging drug tests in order to ensure both the health and competitive balance for their members. This is the time for professional athletes to come clean-- literally and figuratively. The ball is in their court.
New Greek Prime Minister Costas Karamanlis “plans to take control of preparations for the 2004 Olympics, naming himself Culture Minister in his new cabinet.” Karamanlis has said that other than political appointees, he will not “change any key personnel involved in Olympic preparations." Some experts fear that the election of the new conservative Prime Minister could cause problems in the Olympic preparations, especially if the mostly socialist workers strike in response to government policies.
The Vin Baker arbitration hearing was held on Monday and the decision is expected on Thursday.
The NFL players union asked an arbitrator Tuesday to make Terrell Owens a free agent, claiming San Francisco didn't have the rights to trade the wide receiver to Baltimore. The arbitrator is Stephen Burbank of Penn Law School. You can read a previous rant here.
The NBA players union is not happy about a drug test that Damon Stoudamire took in an effort to clear his name. Dan Wasserman, a union spokesman, said: "In general we don't think it's a good idea for players to engage in freelance drug testing. We have procedures in place that should be adhered to." I understand the problems with unsupervised drug testing, but it seems that in the current times, players unions should be encouraging drug tests in order to ensure both the health and competitive balance for their members. This is the time for professional athletes to come clean-- literally and figuratively. The ball is in their court.
New Greek Prime Minister Costas Karamanlis “plans to take control of preparations for the 2004 Olympics, naming himself Culture Minister in his new cabinet.” Karamanlis has said that other than political appointees, he will not “change any key personnel involved in Olympic preparations." Some experts fear that the election of the new conservative Prime Minister could cause problems in the Olympic preparations, especially if the mostly socialist workers strike in response to government policies.
Of Asterisks and Baseball Records: Allen Barra has a fascinating article today about the history of the asterisk on Roger Maris's single-season home run record. As it turns out, there was never an asterisk in the record book on Maris's record, mostly because there is no "official" baseball record book (only books published by independent sources, such as The Sporting News). Over time, though, the myth of the asterisk grew and as Bob Costas stated, "The asterisk was real because the majority of fans believed it was. When they stopped believing, it vanished." A very interesting read.
Monday, March 8, 2004
More on Rushing the Court: Thank you to all of the readers that have responded to yesterday's post -- Legal Implications of Rushing the Court. I have done some additional research on tort law in this area. It appears settled that spectators at sporting events assume the risk of injuries that are related to the sport (i.e., foul ball at a baseball game, stray golf ball or hockey puck). However, as at least one California court has held, the owner of a sports facility has a duty to use due care to remove risks that are not inherent in the sport. Morgan v. Fuji Country USA, 40 Cal.Rptr.2d 249 (1995). Since rushing the court is definitively not part of the sport, it seems that arena management would be liable if a spectator was injured by a crowd rushing the court.
Reader Lewis Shaw also pointed out these two relevant cases. A Massachusetts court has also held that the owner of a sporting venue can be held liable for "gross negligence." Zavras v. Capeway, 687 N.E.2d 1263 (1997). In the university context, the West Virginia Supreme Court has ruled that if "a state university provides recreational activities to its students, it fulfills its educational mission and performs a public service, and thus owes duty of due care to its students when it encourages them to participate in the sport." Kyriazis v. University of West Virginia, 450 S.E.2d 649 (1994).
Reader Lewis Shaw also pointed out these two relevant cases. A Massachusetts court has also held that the owner of a sporting venue can be held liable for "gross negligence." Zavras v. Capeway, 687 N.E.2d 1263 (1997). In the university context, the West Virginia Supreme Court has ruled that if "a state university provides recreational activities to its students, it fulfills its educational mission and performs a public service, and thus owes duty of due care to its students when it encourages them to participate in the sport." Kyriazis v. University of West Virginia, 450 S.E.2d 649 (1994).
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