Violence On The Sport Field - Essay Example

Sport should govern itself on the field of play. The criminal law has no role to play in the regulation of sports field violence”. Sports violence has been an object of prime concern in the last century. While sports such as soccer and rugby have gained momentous popularity, and thereby more interest form bookies and investors, so has there been an increase in competition on the playing field. There may be several occasions on the field and during the course of contact play where a participant would, in the heat of the moment, deliver a tackle that results in actual bodily harm or even serious bodily harm contrary to s. 47 and 20 of the Offense Against the Persons Act 1861, but is allowed to go scot free even when his victim has to go home in a stretcher. The argument surrounds the presence of the defense of implied consent, whereby the victim, realizing the possibility of harm involved, has given his consent to the risk of its occurrence. This applies to all contact sports, be it football, basketball, or wrestling and works in favor of the athletes in so much as allowing them to play to their fullest in the knowledge that, if they were to correspond to the rules of the game, they would not be liable for any consequential bodily harm. It seems, however, that the injured victim has to bear the entire burden, as he may have to spend time in the hospital, away from his livelihood. It is suggested that the issue is one of appropriate balance, where the courts, in favor of upholding public policy, may find themselves awarding punishment for intentionally injurious acts in order to provide effective deterrence to careless athletes in the future. The courts normally only intervene to determine the presence or absence of consent, which is provided as a defense by case law as well as statutory law to both assault and battery as prescribed by s. 47, 20, 18, and 20 of the Offense Against the Person Act 1861. In R v Brown (Anthony Joseph)1 Lord Templeman and Lord Jauncey declared that consent is more aptly deemed a defense as opposed to an element of the offense, a view endorsed by the Law Commission2. The effect of this is in shifting the burden of proof towards the defendant. In sports law, it is the victim’s implied informed consent to partake in the nature of the sport that shows his awareness to the risk of bodily harm. The requirement of knowledge of the degree of harm can be explained by the case of Konzani (2005)3. In that case, it was accepted by the courts that consent to the exact nature of the harm (such as the risk of contracting a sexually transmitted disease) must be there before the defendant can use it as a defense. Consent given must not be for an unlawful act, and sports are generally included in that list since they uphold the society’s inclination towards physical fitness4, and therefore fall under the realm of public policy. The offenses under s.18, 20, 47 of the Offenses Against the Persons Act 1861 are generally exempted from application in sports (McCutcheon, 1994)5. It follows that a sport like boxing, for example, where one contestant intends to inflict assault as well as grievous bodily harm to his opponent (which in regular cases would constitute a crime as serious as murder) is allowed to take place without any criminal sanctions on the part of the participants for the following reasons; the boxers have consented to the risk of harm6 with their participation expressed in their relevant contracts and have complete knowledge of the extent of the harm, which could be grievous within the rules of the game. As a matter of public policy and upholding societal preferences, the courts willingly accept the sport of boxing as an exception. However, what of the case of a boxer, who going against the rules, inflicts a blow below the belt? Would the “implied sporting consent” (Anderson, 2008) be negated in this case? The case of R v Bradshaw (1878) established that an intentional injury at the hands of the accused in a sport which does not necessarily entail actual bodily harm will incur liability. But in boxing, this is not the complete picture, as it is an accepted fact that injury is consequential. Bamwell B explained, “If a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention” (Bradshaw)7. The consequence of this notion is that, a blow below the belt, if seen to be maliciously motivated, would constitute an unlawful act and perhaps not deemed so if the malicious intent was absent, as in the case of a mistimed punch. In Bradshaw, the victim was struck with the knee and died in a football game while the accused was not held liable since no foul play was detected. In R v Moore (1898)8, the accused was not so lucky. He had attacked the victim from the back causing him to collide with the goalkeeper, subsequently dying of injuries. In Moore, the act was noticeably deviant and could easily be deemed against the rules of the game. Similarly, a blow below the belt by a boxer might not be part of foul play if the accused could be deemed to be aiming for the stomach, but a blow aimed squarely below the belt could incur criminal consequences as an intention to deviate from the rules of the game and inflict injury could be derived. The act of Mike Tyson, for example, in biting the ear off of Evander Holyfield could easily negate consent and hold him liable since it was intended to cause him actual bodily harm outside the rules of the game. Court intrusion may happen on the field, it is not necessarily certain. The courts generally find themselves reluctant to intrude on contact sports. However, where they do intervene to render consent invalid, the accused must have delivered beatings to a degree that make the “infliction of bodily harm a probable consequence”9 (Anderson, 2008). But the moments where the courts would be willing to incriminate are subject to further scrutiny, as allowances are made for exceptions like manly diversions10 (a general tendency of men to engage in rough play) and “properly conducted games and sports … as is needed in the public interest” (Lord Lane C.J in Attorney General’s Reference (no. 6 of 1980)). Moreover, it is not just a question of whether the violence was committed outside the rules of the game or within it, since the victim may have been said to consent to the risk of injury obtained from an act committed outside of the rules of the game. The above example of hitting below the belt would also fall within this ambit, as would a late tackle in a football match (Moore (1898))11. According to Lord Woolf, the validity of consent should be determined by a broad spectrum of factors (Barnes)12 which range from the kind of activity the sport entails, the level of harm involved, force used, skills involved, the perceivable risk of injury and the defendant’s mens rea. The Law Commission13 also endorsed the use of these factors. Lord Mustill in this regard mentioned in Brown (1993)14 that offenses committed within sports can be left to be governed by the internal rules of the game citing one of the major reasons for this proposition as public interest, which in today’s contact sports, is more refined than military preparedness. The possibility of criminal sanction only serves to urge players to be cautious of their conducts in order to prevent out of the ordinary mishaps that could be deemed as criminal. The natural question that follows is, in what instances are the courts more willing to intervene? The case law provides some guidance. Incidences of criminal liabilities are more common in rough contact sports such as rugby and football (Anderson, 2008)15. What could be judged from them is that the courts are willing to impose sanctions where the assault was unprovoked and deliberate, being delivered off the ball. The case of R v Moss (2000)16 illustrates this, where in a Rugby match, the assailant punched the victim in the eye fracturing his eye socket. The Court of Appeal upheld the conviction under s. 20 of the OAPA 1861, saying that engagement in a rough contact sport may not be used as a license for thuggery17. Lord Woolf endorsed this viewpoint in Barnes (2004), wherein he stated that the intentional causing of injury in a contact sport must not be subject to immunity. Let us look to the extreme of zero intervention by the courts in serious injury cases. In Moss, the conviction allowed the courts to sentence the defendant to 8 months in prison. Had this not been a criminal case, it is arguable that all Moss would have to face would be fines, and perhaps suspension from a few matches, a punishment arguably unfair to his victim whose fractured eye had to have titanium inserts just to rebuild it up to spec. There may even be significant losses on the victim’s part in the future, in terms of repudiated contracts on account of his handicap. Things would have been even more unfair had the defendant been close to his retirement. Consider the case of Zinedine Zidane, who injured a player in the last match he will ever play, or the case of Mike Tyson. In the former case, his victim did not suffer any serious injuries, but if he had, it would be wholly unfair to let his actions be governed strictly by the in-game rules and disciplinary measures, as any penalties to Zidane would be useless. Conclusion Hence, to conclude, the factors of primary importance are each unique to the case at hand. Sports may be allowed to govern themselves, but in cases of serious bodily harm where the defendant may be liable under s. 20 of the OAPA 1861, the victim will most definitely have to pay the price. It is observed that the courts on first instance do consider the specific rules of the sport in which injury was inflicted (as the rules of boxing cannot be inter-changeable with the rules of football), and thus, consider a range of factors, such as type of sport, the level at which it is played, the degree of force etc. (as per Lord Woolf in Barnes) in order to associate liability to the accused. In particular sports, such as rugby and football, criminal liability is easily inferred if the injury caused was a result of an unprovoked and off the ball assault, but the extent of the risk the victim had exposed himself to by consenting is also taken into account. In a judicial survey in England and Wales, 3/4th of the judges were of the opinion that criminal court involvement is important to curb excessive violence on the sports field18. It follows that sports cannot wholly be allowed to operate under their own rules, especially in actual and grievous bodily harm cases. References Anderson, J. “No licence for thuggery: violence, sport and the criminal law” (2008) Criminal Law Review. Anderson, J. “Policing the sports field: the role of the criminal law” (2005) International Sports Law Review M. Barry, R. Fox and C. Jones, “Judicial Opinion on the Criminality of Sports Violence in the United States” (2005) 15 Seton Hall Journal of Sports and Entertainment Law1 P. McCutcheon, “Sports Violence, Consent and the Criminal Law” (1994) 45 N.I.L.Q. 267 R. v Barnes [2004] EWCA Crim 3246; [2005] 1 W.L.R. 910. R. v Bradshaw (1878) 14 Coxs C.C. 83. R. v Brown [1994] 1 A.C. 212; [1993] 2 W.L.R. 556 HL. R. v Konzani (2005) R. v Moore (1898) 14 T.L.R. 229. R. v Moss [2000] 1 Cr.App.R.(S.) 307 CA (Crim Div). Read More