Lex Sportiva vs. Lex Imperium: On Field Violence and the Law

Where does the law of the game stop and the law of the land begin? It is a question that I have discussed frequently which has no simple answer and involves a wide range of issues and contexts. Writing in the New York Times a few weeks ago Eldon L. Ham makes the case that the law of the land should carry more weight in sporting events. He writes:

Contact sports should not, of course, be routinely second-guessed by crowded courts. But should a vicious attack meant to severely injure or paralyze be overlooked just because it happened on the field of play and not in the locker room or parking lot? Canada doesn’t think so: In October 2000, a Canadian court convicted the Boston Bruins hockey player Marty McSorley for his brutal stick attack on an opponent’s head with just seconds left in the game.

A 2000 hockey attack in the United States did manage to produce a conviction, but only because it occurred just seconds after the game-ending buzzer. In that case, the victim, a teenager in a high school game, was blindsided and left paralyzed. The Illinois court would have been powerless, though, had the attack occurred seconds before.

Many states now have civil tort laws that immunize contact sports from the usual injury claims — but not from aberrant misconduct. Yet little criminal law applies to the same on-field mayhem. (In fact, in 1980, a proposed federal Sports Violence Act aimed at pro sports was defeated in Congress.) There is simply no reason football and other sports at pro, college and even high school levels should any longer treat malicious on-field actions as beyond criminal prosecution.

Townsend Myers, a criminal defense attorney in New Orleans, takes a different view:

Ham muddled his argument with this: “Had such behavior occurred in a school cafeteria or on the subway or in a dark alley, this is exactly what would happen. But because it was on television as part of a Sunday entertainment ritual, it may get a pass.”

Excuse me, but there are a lot of legal hits that occur on the football field that I wouldn’t accept in my child’s cafeteria. I would be the first one to call a cop if I was blindsided in a dark alley while headed to my car, but if it happens to Drew Brees on the field I’m not filling a legal brief. I’m blaming the left side of the O-line.

I tend to side with Myers here. As proscriptions against assault are already established part of legal codes in every US jurisdiction, there would seem to be little additional value in trying to provide some sort of detailed classification for sporting events. The norms of hockey are different than ping pong, meaning that just like in every other legal situation, context matters. If the actions by a player depart radically from the norms of a sporting event, then legal remedies are already available.

Of course, under existing laws there is a high bar to prove criminal behavior, as there should be. On field violence is a situation where lex sportiva (both formal rules and the norms of the game) should be the first and primary recourse, and only in the extreme or bizarre instances (and I'm thinking Tanya Harding here) should lex imperium trump.