From the fieldhouse to the courthouse

“For the kids that watch this game, I’m truly sorry. I don’t play the game that way and I’m not a mean-spirited person.”

— Todd Bertuzzi

“I truly believe that the teams will be able to deal with the sit­u­a­tion more effec­tively than the crim­i­nal jus­tice system.”

— Joe Deters

Cincin­nati was abuzz this week head­ing into the annual matchup between the city’s major col­le­giate bas­ket­ball pro­grams, Cincin­nati and Xavier. Com­ing into the game, Xavier was ranked as the 8th best team in the nation and so it wasn’t sur­pris­ing that as the final sec­onds ticked off the clock, Xavier was win­ning by a com­fort­able margin.

What was sur­pris­ing is that, despite hold­ing a 23 point lead, Xavier’s All-American guard Tu Hol­loway was still on the court. He began to exchange words with mem­bers of the Cincin­nati bench and then a UC fresh­man pushed him with a hand to the face. A Xavier fresh­man then knocked the UC player to the ground and the benches quickly emp­tied into a vio­lent brawl. Dur­ing the melee, Xavier cen­ter Kenny Frease was blind-sided by a punch to the face from Cincinnati’s Yancy Gates — a punch that left Frease with a swollen, black­ened and bloody face. The ref­er­ees called the game over and sent the teams to their locker rooms. After the game, Xavier’s Hol­loway said that the fight hap­pened because his team had been “dis­re­spected” and added that, “We’ve got a whole bunch of gang­sters in the locker room — not thugs but tough guys on the court.”

In the days fol­low­ing the game, Hamil­ton County Pros­e­cu­tor Joe Deters said that his office would inves­ti­gate to deter­mine whether any crim­i­nal charges would be brought against the play­ers. On Tues­day, after review­ing tapes of the inci­dent, inter­view­ing wit­nesses, review­ing the penal­ties handed down by the uni­ver­si­ties and talk­ing to the play­ers involved, Deters released a state­ment say­ing that no charges would be filed and that the play­ers involved had, “reached out to each other privately.”

The fil­ing of crim­i­nal charges against an ath­lete for on-field con­duct is rare. At its most basic level, any con­tact sport assumes that there will be con­duct that is accept­able within the con­fines of the sport but would not be accept­able oth­er­wise. If a foot­ball player is return­ing a kick­off and a 250-pound man in pads and a hel­met tack­les him vio­lently to the ground, we con­sider that a good hit and con­grat­u­late him. If you’re jog­ging down San­dusky Street and a 250-pound man in pads and a hel­met tack­les you, he’s likely to get arrested.

Sim­i­larly, if hockey play­ers decide to drop their gloves and throw a few punches, that’s con­sid­ered an accept­able part of the sport. If two guys in a bar decide to drop their pool cues and throw a few punches, that’s con­sider dis­or­derly con­duct or assault. The dif­fer­ence is that the peo­ple who are par­tic­i­pat­ing in the sport do so know­ing that the con­tact is likely and accept the risk of injury or harm that comes with the con­tact as part of their par­tic­i­pa­tion in the sport.

When that con­tact crosses the line into behav­ior that exceeds what the sport con­sid­ers accept­able, then crim­i­nal charges some­times ensue. This has hap­pened most often in hockey, the most famous inci­dent fol­low­ing a 2004 game between the Van­cou­ver Canucks and the Col­orado Avalanche. Van­cou­ver was upset about an ear­lier hit by Col­orado cen­ter Steve Moore that had injured a Van­cou­ver player. Three weeks later, when the teams played again, Van­cou­ver play­ers repeat­edly went after Moore. Late in the game, which was a blowout win for Col­orado, Bertuzzi grabbed Moore’s jer­sey from behind, punched him in the back of the head and then fell on him.

Within moments, it was clear that Moore was seri­ously injured. He was motion­less on the ice for ten min­utes before being taken off the ice on a stretcher. Moore would remain hos­pi­tal­ized for nearly five months receiv­ing treat­ment for frac­tured ver­te­brae, lig­a­ment and nerve dam­age, lac­er­a­tions, a con­cus­sion and amne­sia. He was in a neck brace for another year before he could even begin reha­bil­i­ta­tion. He never played pro­fes­sional hockey again.

Though Bertuzzi was vis­i­bly shaken and apol­o­gized pub­licly and pri­vately, he was fined and sus­pended from all NHL and inter­na­tional com­pe­ti­tions for 17 months. In June of 2004, the British Colum­bia Min­istry of the Attor­ney Gen­eral charged Bertuzzi with assault. He pleaded guilty in Decem­ber. Moore sued Bertuzzi in civil court in Canada in 2005. It was reported that Bertuzzi offered $1 mil­lion Cana­dian dol­lars to set­tle the suit, but that Moore turned it down. In 2007, Moore spec­i­fied that he was ask­ing for $35 mil­lion for lost income and $35 mil­lion for pain and suffering.

Hockey is not the only sport to have on field inci­dents result in off-field charges. In 2009, a Peo­ria Chiefs pitcher was con­victed of felo­nious assault and sen­tenced to 30 days in jail for throw­ing a ball into the stands after a fight dur­ing a game against the Day­ton Drag­ons. The ball struck a fan in the head.

Ath­letes are expected to play phys­i­cally in sports and the crim­i­nal jus­tice sys­tem does not get involved in those cases. But ath­letes are also on notice that there are lines of accept­able con­duct in those sports and when they cross those lines their behav­ior may result in crim­i­nal penalties.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Dec 16 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.