The Responsibility Of Sport Violence In The United States

When participating in a sport, there is always the likelihood of physical contact, and with that, comes the potential for injury. Of course, this is especially true in contact sports such as Football, Rugby, Hockey, Lacrosse, and rather frequently, Basketball and Baseball/Softball. Some rare cases involving injury as a result of violent acts in sports have resulted in court cases, and subsequent cases have produced largely inconclusive results, with some cases ending in criminal convictions, some ending with civil settlements and some concluding that the incident at hand is a result of sporting behavior despite the nature of the act. Many incidents go unnoticed and are punishable only by an athlete’s respective sport league. These inconsistent
results and sanctions suggest that the line between a sporting incident and criminal or civil assault and battery needs to become more clearly defined.
Violence in sport is common with sport serving as an emotional outlet for those who participate. And certainly, that emotional outlet combined with an athlete’s distinct competitive nature creates the perfect storm for potentially violent outbursts to occur in a game situation. However, there often are incidents in sport that exceed the behavior expected in that sport. When severe injuries result from these so called “sporting incidents”, should anyone be held liable beyond the playing field?

Scholars have argued that punishment in the form of suspensions and fines from an athlete’s respective league is just not enough in some instances, and deserve to be handled by the justice system (Fritz 2002), and as Barry et al explains in an article in the Seton Hall University Journal of Sports and Entertainment: Judicial Opinion on the Criminality of Sport Violence in the United States, some scholars believe that when a play goes beyond the typical violence of a game situation, that it can be necessary for criminal penalties to follow as a result, and that “players who consent to play the sport do not, and cannot, consent to excessively violent acts that are outside of the game.” (Barry et al 2005).
While some scholars agree that criminal and civil litigation should serve as a solution when a sporting incident becomes excessively violent, resulting in injuries, some, including C. Antoinette Clarke disagree, and believe that violent acts that occur during the course of a game should be treated separate from the same acts of violence that occur in “the real world”. According to Clarke, “Violence in sports is a serious problem, but criminal liability for injurious sports acts is inappropriate, particularly where, as here, the violence occurs during game play. What might constitute a deliberate battery or assault on the street cannot easily be characterized as such in the context of a sporting event.” (Clarke 2000).
Consent is an aspect that needs consideration when determining if an athlete will be held liable for his/her actions on the field, and is often considered implied, just by the athlete choosing to participate in a sport and also as a fact that an athlete has consented to behavior in a given sport. (Standen 2009). While consent is a necessary consideration, it can be difficult to determine the behavior an athlete is consenting to (Standen 2009). It can be argued that if an athlete commits a violent action against an opponent in the natural play of a game, whatever injury suffered by the opposing player, there is no reason for action involving an intentional tort since the opponent consented to the potential for injury during a game play situation. (Fritz 2002).
Of course, consent can only be used as a defense in a lawful game. The State of Washington v. Richard V. Hiott is a case involving a juvenile defendant. Mr. Hiott was involved in a game where he and another juvenile were firing BB Guns at each other. This game resulted in the plaintiff being shot in the eye, and ultimately losing his eye. Mr. Hiott was convicted of third degree assault as a result of his role in the incident. When Mr. Hiott argued that he should not be held liable for the incident since the plaintiff consented to playing the game, the court ruled against him, stating that since the game was not considered a lawful sport, consent could not be used as a defense. (Washington v. Hiott 1997). This case shows an inconsistency in the justice system, where there was consent since both players agreed to play the game, but the game was not a recognized “lawful sport”, so consent was unable to be applied as a defense
The case of Robert F. Lestina v. West Bend Mutual Insurance Company and Leopold Jerger provides an example of where an intentional tort was in fact proven as a result of an athlete’s on field actions. In this case, an offensive player suffered a severely injured knee while trying to score during a recreational soccer game as a result of being slide tackled by the goalie. The defendant in this case, Mr. Jerger, was held civilly liable for negligence in the injury of Mr. Lestina since the rules in this league prohibit slide tackling, despite the incident taking place under game conditions and the consent of both athletes in this case (Lestina v. Jerger 1993).
In both criminal and civil cases involving athletic violence, the intent of one athlete to harm another athlete must also be determined in order to decide on the degree of liability of an athlete. In order for a conviction to be rendered a court needs to prove that an athlete purposely meant to cause harm to another athlete (Fritz 2002). In some instances, the intent of an athlete is easily concluded, such as the State of Ohio vs. Gino Digulgi, a 2004 case out of Hamilton County, Ohio where an intramural basketball player took a swing at another athlete during an on-court confrontation leaving the victim with a severe eye injury.
As a result of the incident, criminal assault and battery charges were pursued. The defendant pleaded “not guilty” by virtue of Self-Defense, which was rejected by the court as the results of the investigation showed that the defendant punched the athlete out of retaliation for an on court incident rather than self-defense to a violent act. He was given a 180 day suspended sentence, 60 day house arrest and was required to pay fines and attend anger management courses. (State of Ohio vs Digulgi 2004). In this case, there was indisputable evidence that the defendant intentionally swung at the plaintiff causing a severe injury. The court’s decision to convict the defendant on assault charges was based on the actions of the defendant which were not consistent with a typical basketball play.
A similar case occurred in The State of Washington V. Jason P. Shelley in 1997, where the defendant, Mr. Shelley was convicted for assault for his role in an on court incident where he threw a punch at another player, and broke his jaw. Mr. Shelley argued that the plaintiff in this situation consented to the possibility of an incident like this when he decided to play in the game. After careful review, the court felt that the incident was clearly not a basketball incident and the resulting injury from this violent act was enough for Mr. Shelley to be convicted of criminal assault (State of Washington v. Shelley 1997).
Intent is not as simple to determine in some cases however, where the violent actions of an athlete walk the line between sporting incident and criminal behavior. In the case of Hanson v. Kynast 1987 in Ashland, Ohio, the Court of Common Pleas was challenged on their ruling in favor of a lacrosse player who had injured another player. In this case, the injured player grabbed the defendant from behind during the game, to which the defendant responded by flipping the injured player over his shoulders causing a head injury to the plaintiff. After careful review, there was no conclusive evidence that the defendant’s actions were intentional and the defendant was ultimately granted “summary judgement”, meaning that the issue would not be able to go to court (Hanson v. Kynast 1987).
The ruling on the defendant’s behalf in this case, categorized the incident as a sporting incident. The court also determined that there was no conclusive evidence to hold the defendant liable in this situation. While the court rightfully made its decision on a lack of evidence, this case is an example of how a lack of clear standards makes it difficult to determine when an athlete should be held liable for an on the field incident. In all actuality, an athlete flipping another athlete over his/her shoulders is not a usual part of a Lacrosse game, but since the injury took place during a play, in the heart of competition, it would be difficult to find the defendant liable in this situation since it was easily disguised as a sporting incident. The only one who knows for sure the intent behind the incident, is the defendant themself.
These previously mentioned cases have inconsistencies in their outcomes, which are likely related to a lack of uniformity in the development in standards used to determine when a sport violence incident has crossed the line into assault.
In Sports and Criminal Law: The Manly Sports, the Problematic Use of Criminal Law to Regulate Sports Violence, Jeffrey Standen proposes a standard to clarify the line between sport violence, and criminal or civil violence by clearly limiting the implied consent that athletes have when they agree to participate in a sport and limiting the range of acceptable behavior in sports. According to Standen, this approach not only covers incidents in sports that would be seen as “foreseeable”, but also includes acts that might be anticipated outside the scope of the game, such as a fight that occurs during an event that results in injury to an athlete (Standen 2009). Standen argues that in order to create uniformity, criminal prosecution in sport should only take place when an athlete commits an act that is beyond the sporting behavior and beyond the rational thought of rule makers in a sports league (Standen 2009). In other words, an athlete should only be punished beyond the scope of the respective sport league when he/she has committed an act so violent that it exceeds all foreseeability in a
sport.