Sourav Paul
“Serious sport has nothing to do with fair play. It is bound up by hatred, jealousy, boastfulness, disregard of all rules, and sadistic pleasure in violence. In other words, it is war without shooting.”
- George Orwell
Introduction
Guided by the aforementioned words, crimes are being committed every day in stadiums, ice-rinks, and basketball courts across the world, and each having a unique manner of player-inflicted violence. From the infamous head-butt by Zidane during the 2006 World Cup final[1] to the suspension of eleven hockey players during the final match of the 56th Nehru Cup[2], these incidents have kept the debate alive on whether the sportspersons should face criminal charges for violence during the course of a sporting event. The question remains as to whether an ordinary citizen, when dons the jersey and enters a stadium, he or she is exempted from the criminal liability of the host State, as if entering a different realm. In R v. Bradshaw, it was held, “no rules or practice of any game whatever can make that lawful which is unlawful by the law of the land.”[3]
At the onset, the author distinguishes aggressive play and violence during athletic competition and expounds on the idea of ‘legitimate sports’. He then examines the doctrine of implied consent and the scope of this principle. The author also highlights the adjudicatory role of sports authorities with the aid of relevant examples. Lastly, he suggests some recommendations regarding the issue at hand.
Aggression v. Violence: Drawing the Line
There is a thin line differentiating an aggressive manoeuvre and a violent charge during a sporting competition. However, some degree of aggressive conduct is required for certain games. A revenge tackle in football, a bouncer targeting the batsman’s head, all these are established practices. Any act to be deemed violent, must fall out of the normal scope and course of the game. However, the use of an established practice in a game to justify the violent acts of a player is a matter of concern.
There are two competing interests at interplay: creating a safe environment by extending criminal regulations and free facilitation of sporting activities such that players do not feel the fear of prosecution, on the other. The concept of ‘legitimate sport’ is of immense importance for this discussion.[4] It states that the act should be a substantial transgression from the rules of the game and sufficiently grave to attract criminal liability. Sports are governed and regulated according to their respective rules, and keeping aside the anomalous position of combat sports, these rules should not be in contravention to the criminal law standards. There is a single mention of ‘violent conduct’ in the England’s FA rules and the scope and definition of this term is absent.[5] Similarly, the ICC Code of Conduct is silent on what constitutes ‘an act of violence’.[6]
Therefore, in the absence of a definition of ‘violent conduct’ in rules governing sports, the respective regulating bodies should consider this much warranted lacunae. The distinction between an aggressive and violent conduct is the basic building block for a cause of action under criminal law.
Analysing the Doctrine of Implied Consent
Generally, an individual does not consent to suffer excess harm, nor will the consent relieve a wrongdoer from his illegal conduct. However, a player’s participation in sports amounts to default consent to suffer certain harsh contact, even if it causes physical injury. The fundamental rationale is that the player is aware of the nature of the sport and knows the possible harm that he might suffer.[7] As Chief Justice Cardozo stated, “one who takes part in sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.”[8] In Green[9] and Maki[10], the courts established two legal principles governing the doctrine of implied consent in the realm of sports violence: (i) In all the sports, players consent to many risks, hazards and blows, but, (ii) there is a limit to the ‘magnitude’ and ‘dangerousness’ of a blow to which a sports participant can give valid consent. These principles provide some clarity on the issue. The doctrine applies only when there is a nexus between the wrongdoer’s act and the nature of the sport itself. The doctrine as a defense can be applied to conduct connected to the sport and not any ancillary event.[11] Thus, the usual brawls in the dugout during el clásico would not be covered under this defense.[12]
The reasonable foreseeability of the blow, along with the surrounding circumstances, needs to be taken into account. A defender, instead of kicking the ball, targets a player’s knees, would not be foreseeable under any stretch of the imagination. Adding to the fact scenario, consider that the defender belongs to the losing side; hence the frustration of the player is fuelling his aggressive conduct. Therefore, the circumstance under which the player is showing his violent conduct needs to be noted.
This perspective of law was tested in People v. Freer, where the defendant was charged with a third-degree assault because after he was tackled, he went ahead and punched the plaintiff in his eye.[13] The court held that the ‘retaliatory punch’ is outside the scope of the game and constitutes an illegal act of aggression.[14] Thus, the implied consent defense was not granted.
In light of the aforementioned arguments, the author argues that a blanket application of the defense of implied consent sets a dangerous precedent. This will enable every other illegal act of aggression during the course of a game to be justified. The courts must recognize the public policy interest in facilitating free and vigorous participation in sports competitions, keeping in mind the existing criminal law standards of the State.
Role of Sporting Authorities as a Dispenser of Criminal Justice
The enforcement of the rules governing the sport is primarily delegated to the sporting authorities. These authorities are comprised of members who have the expertise and are in the best position to regulate and offer a safe, violence-free environment in stadia. They have their own disciplinary proceedings to enforce the rules of the game which is welcomed, but it is argued that the criminal courts are delegating their responsibility to punish offenders, to draft their own legislations, which may or may not conform to the criminal law standard of the State.[15] In this way, an informal group of people can invent their own way of entertainment and then claim to have been playing a game.
It is clear that there are substantial procedural differences between the criminal law and procedures adopted by the sporting authorities. The Court of Arbitration for Sports is an independent institution which provides services for the settlement of sports-related disputes through arbitration.[16] It is one of the most sought after dispute-resolution bodies. However, the parties are free to agree on the law applicable to the merits of the dispute, failing which the Swiss law applies.[17] Therefore, the arbitrators will not apply any definite criminal law standard for the adjudication of the dispute.
There is also a substantial difference in the level of sanction imposed on individuals for violent conduct. A violent tackle in football might attract a red-card, which in no way can be compared with the sanctions imposed on a wrongdoer by the criminal law. The red-card depends on the discretion of the referee of the match and there have been instances where these incidents have been overlooked. Thus, the adjudication of violent conduct rests upon a single individual during a match.[18] The financial penalties imposed by them cannot be equated with the fines imposed by a criminal code. Interestingly, voluntary retirement from the game would absolve the wrongdoer from any penalties because the rules governing the sport will cease to apply to him.[19]
Even if we upheld the efficacy of the rules of the sports, how far have the sporting authorities have been able to extend it to low-level amateur leagues, to the unorganized, informal tournaments in localities? These informal sporting events operate in an unregulated sphere, so in the absence of the application of the rules governing the sport, can criminal law be imposed to fill in the void? There is a little chance of effective disciplinary regulation, and most of the matches do not have professional umpires and referees.[20] In the absence of equitable application of the rules, creates a vacuum and jeopardizes the integrity and credibility of the sport. Thus, if it is accepted that criminal law delegates some power to the sporting authorities, there is a huge disparity in the policing of criminal law and that of sporting authorities.
Conclusion
The focus of sports has increasingly become winning at all costs. Sportsmanship has taken a backseat and in the words of Vincent Lombardi, who coined the famous maxim, “Winning isn’t everything; it’s the only thing.”[21] The commercialization of sports has also contributed to the high incidence of violence in sporting events. While extending criminal law standards to sporting events, one needs to strike a balance so that perpetrators of violence are not immune from criminal prosecution. On the other, the players can play the game freely.
The nature of player-inflicted violence is distinct for different games, and hence a one-size-fits-all approach would be disastrous. The author recommends that the sporting authorities should setup quasi-judicial tribunals for proper adjudication of sports-violence related cases. They should also incorporate criminal law standards in the rules of the games to determine the threshold of the act attracting criminal liability. The parties involved associated with the sports industry should note that a stadium is not a diplomatic enclave or High Seas and it is well within the rights of the host State to expand its criminal jurisdiction in the realm of sports.
The disciplinary procedure should have some points of convergence with operating procedures of a criminal law trial, but must be aligned as per the needs of the sport. The right to a free and fair trial is a human right, and the sporting bodies should uphold this right at all cost while adjudicating.[22] Heat of the moment, provocation or excitement cannot justify the unforeseeable violent acts of the players involved.[23]
In this article, the author discussed the difference between aggressive contact and violent contact. He highlighted how the rules governing the sport are silent on the issue of ‘violent contact. He uses the examples of England’s FA rules and ICC Code of Conduct to further substantiate this argument.
On the issue of implied consent as a defense, the author argues that the courts need to undertake a more holistic approach, taking into account the magnitude, dangerousness, and reasonable foreseeability of the contact He contends that this doctrine's blanket application would be detrimental to creating a safe, violence-free sporting competition.
In the next segment, the author highlights the adjudicatory role of sporting authorities and how these are in stark contravention to the established criminal law standards. He discusses the sporting authorities' inability to extend their rules equitably and examines whether criminal law can be imposed to fill in the void.
Lastly, the author concludes by suggesting some recommendations which may not be the panacea; however, they might provide some fruitful insight on the issue of sports violence and criminal liability.
[Sourav Paul is a first year law student at the National University of Juridical Sciences.]
[1] Barney Ronay, World Cup questions: what did Zidane’s head-butt in Berlin mean?, May 7, 2020 , available at https://www.theguardian.com/football/2020/may/07/world-cup-questions-zinedine-zidane-head-butt-2006-berlin-france-italy-marco-materazzi (Last visited on January 7, 2021). [2] The Indian Express, Hockey India suspends 11 players after violence in Nehru Cup final, December 10, 2019, available at https://indianexpress.com/article/sports/hockey/hockey-india-suspends-11-players-after-violence-in-nehru-cup-final-6160532/ (Last visited on January 7, 2021). [3] R v. Bradshaw, (1878) 14 Cox CC 83, 84-85 (per Bramwell LJ.). [4] R v. Barnes, (2005) 2 All ER 113, 113-114 (The Court of Appeal upheld that the concept of ‘legitimate sport’ as not only helpful but necessary in further guidance as to the rules of the respective sport and the availability of consent.); See also, R v. Scarlett, (1993) 4 ALL ER 629, 635 (per Beldam LJ.). [5] IFAB Laws of the Game, 2020-21, Law 12: Fouls and Misconducts. [6] The ICC Code of Conduct for Players and Player Support Personnel, 2019, Article 2, Rule 2.19. [7] Charles Harary, Aggressive Play or Criminal Assault-An In Depth Look at Sports Violence and Criminal Liability, 25 Columbia Journal of Law & Arts 197 (2001). [8] Murphy v. Steeplechase Amusement Co., (1929) 250 N.Y. 479, 482-483. [9] Regina v. Green, (1970) 2 C.C.C.2d 442. [10] Regina v. Maki, (1970) 1 C.C.C.2d 333. [11] People v. Freer, (1976) 381 N.Y.S.2d 976, 978. [12] Barnaby Lane, Civil war, pig’s head, and a murder in Angola: Inside El Clasico, the biggest game in world club football, April 1, 2020, available at https://www.insider.com/real-madrid-fc-barcelona-el-clasico-fiercest-rivalries-world-football (Last visited on January 7, 2021.). [13] People v. Freer, (1976) 381 N.Y.S.2d 976. [14] Id. [15] Law Commission of United Kingdom, Criminal Law: Consent and Offences against the Person, Consultation Paper No. 134, 65 (1994). [16] Court of Arbitration for Sports, History of the CAS, available at https://www.tas-cas.org/en/general-information/history-of-the-cas.html (Last visited on January 30, 2021). [17] Court of Arbitration for Sports, Frequently Asked Questions, available at https://www.tas-cas.org/en/general-information/frequently-asked-questions.html (Last visited on January 7, 2021). [18] Ben Livings, ‘Legitimate Sport’ or Criminal Assault? What are the Roles of the Rules and the Rule-makers in Determining Criminal Liability for Violence on the Sports Field?, 70 (6) The Journal of Criminal Law 495-508 (2006). [19] Id. [20] Supra note 7, 202. [21] Brian C. Anderson & Peter Reinharz, Bring Back Sportsmanship, 44 City Journal (2000). [22] Universal Declaration of Human Rights, 1948, Art. 10. [23] Supra note 7, 216.