By: William Burke

The prospect of increased federal regulation of professional sports is a growing concern in the field of sports law. Such regulation is openly invited by some and fervently opposed by others. However, all involved are debating essentially the same question: should the federal government have any say in the punishment of incidents which occur within the scope of a professional sports contest and which would pose potential legal consequences if the immunity that has typically come with professional athletic status were to be abrogated?

Although infamous athletic transgressions have been creeping, or perhaps bursting, into headlines since professional leagues have been extantⁱ, events of recent years have unfortunately left the nation’s sports-page aficionados progressively more acquainted with terminology like “criminal charges,” “federal investigation,” “congressional hearing,” and “government regulation.” A wide range of issues that court governmental intervention, including but not limited to steroid abuse (think Barry what’s-his-name), ethical coaching practices (think the New England Patriots and the Spygate incident), and contest-fixing (think Stevin “Headache” Smith’s point-shaving scandal), have engaged the public’s awareness. Existing alongside these issues is a discouraging trend that has also provoked genuine concern: increasing violence in sports and the veil of legal immunity provided in most cases by baselines, sidelines, and uniformed attire. Just what is, or should be, “out of bounds,” and to what extent, if any, should the federal government answer that inquiry?
For various reasons, internal league sanctions may remain as the most appropriate mechanism by which players are penalized and in-game violence thereby deterred.ⁱⁱ First, it has been suggested that the various leagues and their officials have the best understanding of the rules and customs of their respective sports.ⁱⁱⁱ Lawyers, judges, and juries are simply not as knowledgeable as league officials when it comes to determining whether a violent act “crosses the line” and exceeds the norm.^iv Similarly, league executives are probably more familiar with precisely what risks their players have assumed.^v Second, league judgments are likely to be “swift, certain and severe.”^vi Where such punishments provide finality in a relatively quick fashion, they may be better suited to ensuring consistent, predictable sanctions.^vii

On the other hand, it appears as though league-crafted punishments in the form of fines and suspensions have not sufficiently deterred sports violence.^viii Though it is undoubtedly appropriate for sports leagues to impose their own punishments for certain incidents^ix, the continuing trend of violence suggests that the leagues’ efficacy may be limited and that some governmental regulation may be needed to effectively control and punish cases of extreme misconduct.^x

Currently, athletes who commit acts of excessive violence during sporting contests are generally not accountable for those actions beyond the aforementioned sanctions often imposed by the league. Although civil liability within the paradigm of conventional torts has been tested as an additional or alternative form of punishment for excessive on-field violence, this avenue has not been realized as an effective punishment or deterrent due to obstacles such (1) as the inherent difficulty in proving recklessness or an intent to cause harmful or offensive contact where such contact occurs in settings that permit and even encourage intense physical confrontations,^xi (2) the ever-present assumption of risk defense,^xii and (3) a general hesitancy on the part of many athletes to sue other members of their professional organization.^xiii Accordingly, civil lawsuits have provided little, if any, relief to plaintiff athletes who have been victimized by the violent behavior of other professional competitors.
Similarly, criminal culpability has also floundered in addressing or deterring excessive violence in sports. Though many favor the prosecution of athletes for violent conduct (upon the theory that certain conduct is criminal whether it occurs on Madison Avenue or in Madison Square Garden), courts have been used infrequently for this purpose and garnering convictions has proven immensely difficult.^xiv Proving the requisite mens rea has been a seemingly insurmountable burden for prosecutors, seeing as defendants’ actions usually took place within the context of fast-pace physical activities that involve split-second decision-making and substantial bodily contact as fundamental aspects of accepted play.^xv Since aggressive contact lacking an accompanying intent to injure routinely occurs between players in many sports, proving the mens rea “beyond a reasonable doubt” has been a formidable hurdle for prosecutors to overcome. ^xvi

Conclusively, the futility of attempts at establishing civil or criminal liability for on-field violent behavior, coupled with the increase in detestable incidents on the various fields of play, fuels speculation that perhaps internal league sanctions and available legal remedies are not enough. Statutes may be needed to authorize governmental impositions of punishment for excessive on-field violence. Although the contemplation of such legislation is not entirely new^xvii and has spurred little real action up to this point, the underlying problem of sports violence is as acute now as ever. Given the extent to which depressing instances of athletes’ violent misconduct have permeated recent sports news, the lack of real legislative action may soon be history. Federal regulation of punishments for excessive on-field violence may not be far off: don’t be surprised to see the shift from six-game suspensions to six-month prison terms.

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ⁱ Scholarly sports historians and well-informed laymen alike may recall, among others, these shamefully malign incidents: “Shoeless” Joe Jackson and the rest of the 1919 Chicago White Sox, who conspired to fix the 1919 World Series; Wilbanks Smith’s 1951 on-field, jaw-breaking blow to Drake University star Johnny Bright, which prompted fervent speculation as to the potentially racial motivation for the attack; and, Kermit Washington’s near-fatal cheap-shot on Rudy Tomjanovich during a 1977 Lakers-Rockets contest. Digging far deeper into the annals of the sports violence, the Nika riots in Constantinople in 532, which cost some 30,000 rioters’ their lives amidst chaos spawned by allegiances tied to chariot racing, provide further evidence that sports often escalate into more than “just a game.” However, the Nika riots did not revolve around any detestable actions taken by the athletes themselves. In that sense, they are distinguishable from the type of incident around which this piece revolves: athletes’ actions within the scope of their profession that produce potentially legal consequences.
ⁱⁱ Kevin A. Fritz, Going to the Bullpen: Using Uncle Sam to Strike Out Professional Sports Violence, 20 Cardozo Arts and Ent. L.J. 189, 219 (2002) [hereinafter Fritz].
ⁱⁱⁱ Id.
^iv Id.
^v Id.
^vi Id.
^vii Id.
^viii Id. at 222.
^ix Id.
^x Id.
^xi Clete Samson, No Time Like the Present: Why Recent Events Should Spur Congress to Enact a Sports Violence Act, 37 Ariz. St. L.J. 949, 954 (2005) [hereinafter Samson].
^xii Fritz, supra note 2, at 198.
^xiii Id. at 202.
^xiv Id. at 203.
^xv Id at 204.
^xvi Id.
^xvii In 1980, Ohio Representative Ronald M. Mottl proposed the Sports Violence Act of 1980 to members of the House of Representatives, but it ultimately failed. Samson, supra note 11, at 959-60.