The Intersection Between Violence in Sports and the Criminal Law

Toward the end of the baseball season we saw Jon Papelbon attack Bryce Harper.  What follows is Ty Willihnganz’s — a brilliant lawyer from Wisconsin — discussion of the legality of this attack.  


In the wake of the attempted strangulation of outfielder Bryce Harper by his teammate and pitcher Jon Papelbon, and the recent passing of the 50th anniversary of the Juan Marichal attack on Dodgers catcher John Roseboro, I was asked by Professor David Berri to provide an overview of the relationship between the criminal laws and violent acts committed between opponents on the field of athletic play. Specifically, when and under what circumstance can an assault and battery committed by an athletic participant subject the actor to criminal liability?  This is not a law review article, nor is it intended as such. I have written it as a layman’s guide to the state of the common law in America, jurisdiction non-specific.

Sanctioned Assault and Battery

The rules of play in certain so-called “contact sports”, such as football, hockey, and boxing, permit and often encourage aggressive touching of one participant by another. Most of these permitted touches would fall squarely under Blacks Law’s definition of both an assault (“an unlawful attempt to inflict a bodily hurt upon another”) and a battery (“an unlawful infliction of physical violence on a human being without his consent”). The key word in those definitions, of course, is “consent”. What harm does one sports participant “consent” to having another participant inflict upon him?

Volenti non fit injuris

Most courts answer the question of sporting consent by invoking the latin phrase “volenti non fit injuris” (“to a willing person, no injury is done”). The phrase was first used in this context by former Supreme Court Justice, Benjamin Cordoza, when he sat on the New York Appellate Court and decided the case called Murphy v Steeplechase Amusement Co.  Without going into detail about the case, Judge Cardozo reasoned that “one who takes part in a sport accepts the dangers inherent in the sport”.  That reasoning has since been broadly accepted. Many states have codified the fact that a sports participant is deemed to consent to any act on the sporting field which may be considered “obvious and necessary” to the sport. But as a practical matter what exactly does that phrase encompass, and how far does that implied consent go?

Accepted Violence in an Acceptable Form

If we can agree that the forms of violence sanctioned by the written rules of any particular sport have to be considered by definition “obvious and necessary” to the sport, what about forms of violence that are part of the so-called “unwritten” rules? How would the criminal courts treat hockey fights, or baseball brawls, for instance? What about spearing in football? Surely one cannot define such acts as either “obvious” or “necessary” to their particular sport given that they are outside its rules. So would that kind of violence fall outside the scope of an athlete’s sporting consent? My answer is “it might”, depending upon the manner and degree of violence inflicted.

Having surveyed the very few prosecutions of sports violence (and they are almost all Canadian hockey prosecutions), I think a good rule of thumb would be that a sports participant consents to any form of violence “that is generally accepted in a sport, so long as it is done in an acceptable way” (my words). What do I mean?

Well, for instance, I have noticed one outstanding characteristic to every “hockey prosecution” I could find – the aggressor used his stick as a weapon. One might generally conclude from these cases that the act of the “hockey fight” itself is an accepted form of violence (at this point in time) that one participant may inflict upon another, so long as the aggressor attacks with only his fists, and so long as he halts his attack once it becomes obvious the recipient is subdued. I am inclined to also add “so long as events warrant the attack” but I do not follow hockey closely enough to know whether “provocation” is an essential element of a hockey fight.

I would say that it certainly is in an essential element of a baseball brawl. Otherwise, the same rules apply to it as a hockey fight. I believe at this point in time, some amount of violence is both outside of the rules of the game of baseball and yet an inherent risk consented to by any participant. However, that violence must have been sufficiently provoked (or necessary, in the case of a “bean ball”), and its administration must be measured and must not include weapons.

The Marichal Incident

As a negative example, Juan Marichal stepped outside the bounds of the game when he attacked John Roseboro with his bat. That attack was shocking in its time, and completely unacceptable both then and now (I found several quotes from contemporaries who thought Marichal should have gone to jail). However, a batter rushing the mound to throw his fists at a pitcher is, to a certain extent, an accepted part of the game at most levels and a certain level of fisticuffs will continue to be so accepted for the foreseeable future (a California court of has recently ruled that “pitching inside” is an accepted part of the game and inherent in that is the risk of the beaning) and therefore a baseball participant can be said to consent to such acts.

That being written, I can envision a day when certain acts that were once accepted without question as “part of the game” are made so unacceptable that participants who continue to perform them risk criminal charges. I am specifically thinking of the so-called act of “spearing” in football (the act of leading with the crown of one’s helmet when tackling an opponent). Spearing was once a commonplace tackling technique used by defensive backfield players as a means of both dislodging the football from the offensive football carrier, and intimidating intended pass recipients. However, in recent times the dangers of spearing have become so well-known that a football participant’s continued use of the technique could conceivably open him to outside criminal prosecution if it were both repetitive, blatant, and the direct cause of a catastrophic injury to an opponent.

A Final Word on Sporting Consent

So one must take into account both the rules of the game and the traditions of the game when deciding what forms of violence in sports are an accepted risk every athlete takes, and what forms might be deemed “criminal”.

Of course, acts that are “no part of the game” such as Papelbon’s aforementioned attack on Harper have never enjoyed any kind of exemption from the criminal laws and are clearly open to criminal prosecution. However, as a practical matter, prosecutors have always been loath to prosecute such acts because they know they will get little help in their efforts from either the victim of the attack or the direct witnesses (teammates don’t testify against teammates, and sports participants aren’t eager to help anyone establish any criminal precedents in their sporting activities).

_ Ty Willihnganz