ARTICLE
By: Gretchen M. Colón Fuentes
Introduction
Sports play a major role in which millions, worldwide, participate. Sports violence is a growing painful concern for participants engaging in sports activities. It is not a new trend that there is violence in sports, either on a professional, collegiate, youth level, or even as amateurs. During those hectic games, competition increases and athletes’ resort to any measures in order to win, even if it means recurring to violence. It has been a long tradition in sports to internally resolve disputes, thus discouraging outside court action. Different leagues have internal disciplinary committees, whose purpose is to deal with criminal law violations with hopes of not going into litigation. In short, violence in sports has become a safe space for unpunished crimes.
Part of the legal society finds that only when violence is committed “outside the scope of the game” it is suitable to charge criminal penalties.[efn_note]Mathew P. Barry et al., Judicial Opinion on the Criminality of Sports Violence in the United States, 15 Seton Hall J. Sports & Ent. L. 1, 3 (2005). [/efn_note] The fact is that players consent to play the game, but they do not consent to excessive force during a sporting event. However, if criminal sanctions were to be imposed for excessive force or aggressiveness it “would destroy [the]fundamental aspect[s]of” a sport.[efn_note]Id. [/efn_note] These aspects consist in success and competitiveness, and athletes realize that aggressiveness and intimidation helps in accomplishing the team’s success. Living in a world where everything is recorded, posted on the Internet, and shown on T.V., sports violence “pose a significant threat to our society” as amateur athletes and children try to replicate what professional athletes portray.[efn_note]Id. at 4.[/efn_note]
In Puerto Rico we rarely see excessive violence in sports that could end an athlete’s career. However, with rise of criminality on the island,[efn_note]See Estadísticas de Incidencia Criminal, Policía de Puerto Rico, https://policia.pr.gov/herramientas-estadisticas-incidencia-criminal/, for statistics of increased criminal activity in the last couple of years. [/efn_note] it is proper to analyze different views and criminal defenses in order to prepare ourselves for when it happens. The following will explain how each case —and sport— is different and how the levels of foreseeable violence will also vary. According to these levels, this article will discuss possible defenses in case an athlete gets prosecuted or punished by someone other than the league.
I. Sports Violence
Sports violence is not a new trend. Although it has always been present in sports —mainly hockey and American football— it is becoming more common and severe. There are several debates regarding sports violence and common knowledge violence.[efn_note]Robert C. Berry & Glenn M. Wong, Law and Business of the Sports Industries 680-81 (2d ed. 1993). Common knowledge violence can be described as any physical action that causes injury to another; some examples are punching and shoving. [/efn_note] The views on these debates are: (1) it is not criminal nature because athletes give consent to violence on the field,[efn_note]Id. at 681. [/efn_note] (2) “violence in sports may encourage in other areas.”[efn_note]Barry, supra note 1, at 7. [/efn_note] Living in a media era, society —fans— who follow sports see these professional athletes —who act unprofessionally and aggressive— as heroes.[efn_note]Kevin Fritz, Going to the Bullpen: Using Uncle Sam to Strike Out Professional Sports Violence, 20 Cardozo Arts & Ent. L.J. 189, 195-96 (2002). [/efn_note] Kids and adults, learning to play the game, or simply playing the game they love, tend to mimic the player they look up to the most, even if that player’s move is illegal. Competition, from a very early age, is taught worldwide, and this produces an idea of greatness in people’s minds. This idea of greatness is eventually developed into the idea of doing whatever it takes to win —e.g. use excessive force—. This, in turn, might lead to “[e]ventually sports violence transform[ing]into societal violence, which may be because children fail to recognize that aggressiveness acceptable on the field is not tolerated off the field.”[efn_note]Barry, supra note 1, at 8. [/efn_note]
A. Sports
There are sports where being aggressive is necessary. For example, football, hockey, boxing, ultimate fighting and rugby are among the sports where aggression is a key component to achieving a goal, making excessive use of force a part of the game.[efn_note]Id. at 5. [/efn_note] Hockey and rugby have the reputation of being the most violent team sports. In these sports, the coaches often encourage violence and excessive hits, and some players are even on the active roster because of their ability to hit others.[efn_note]Id. at 7. [/efn_note] However, not all sports require face-to-face action and aggressive play. Baseball is one of the sports where athletes do not need to feast on aggressiveness in order to do their job. With basketball, although punishable by the league, aggressive actions are often seen in the court.
B. Moments of Sports Violence in History
Sports enthusiasts can recall in 1977, one of the biggest acts of sports violence in the basketball world. During an NBA game between the Houston Rockets and Los Angeles Lakers, a player from the Rockets —Rudy Tomjanovich— was trying to break up a fight between Lakers player Kermit Washington and Rockets player Kevin Kunnert. Tomjanovich, in this peacemaking attempt, was punched in the face by Washington.[efn_note]For the civil trial and holding, see Tomjanovich v. California Sports, Inc., 1979 U.S. Dist. LEXIS 9282, 3 (S.D. Tex. 1979). [/efn_note] The punch caused “a fractured jaw, broken nose, skull fracture, facial lacerations, brain concussion and spinal fluid leakage from the brain cavity.”[efn_note]Jeff Yates & William Gillespie, The Problem of Sports Violence and the Criminal Prosecution Solution, 12 Cornell J.L. & Pub. Pol’y 145, 149 (2002). [/efn_note] This attempt to prevent a fight resulted in the end of Tomjanovich’s career as a professional basketball player.[efn_note]Charles Harary, Aggressive Play or Criminal Assault? An In Depth Look at Sports Violence and Criminal Liability, 25 Colum. J.L. & Arts 197, 198-99 (2002). [/efn_note] Was this blow preventable? Was this part of the game? If it was part of the game, did Tomjanovich consent to this violent action? Or did Washington feel provoked by Tomjanovich?
What about on court violence that turns into off-court—real life—violence? It was 2004 and the Indiana Pacers were visiting the Detroit Pistons. In the fourth quarter, when there was 46 seconds left to play in the game, one of the most infamous moment in sports history happened, “Ron Artest and Ben Wallace began a fight that turned into a full-blown brawl.”[efn_note]Basketball, This Is What Really Happened At The Malice At The Palace, Gameday News (April 9, 2019), http://www.gamedaynews.com/basketball/everything-you-need-to-know-about-the-malice-at-the-palace/?chrome=1; see KlassicThrowbackTV, Throwback: Pacers vs Piston Brawl – Full, YouTube (April 14, 2014), https://www.youtube.com/watch?v=gQIIOWPNYM0, to view the historic brawl. [/efn_note][1] The NBA world calls it: the Malice at the Palace. The Indiana Pacers were leading the Detroit Pistons by fifteen points with 46 seconds left in the game, then, Ron Artest (Pacers) fouls Ben Wallace (Pistons). The game was basically decided, but after the foul Wallace hit Artest back, reaching his face. Both team benches cleared, teammates were trying to get between Artest and Wallace, as it turned out, these two had a previous problem between them. After the fight settling down, Artest was by the scorer’s table near the broadcasters trying to relax and cool off, and “a cup came flying in from the stands.”[efn_note]Id. [/efn_note] This made him run into the stands, trampling one of the broadcasters, which resulted in serious injuries. This cup ignited the off-court violence. Fans and players where fighting, and people described the scuffle like it seemed it went on forever.[efn_note]Id. [/efn_note] After the incidents, Artest “claimed he wasn’t trying to hurt anyone”, he also said that he didn’t intend to punch the fan that threw the cup, nor choke him, he just wanted to grab the person around the shoulder area.[efn_note]Id. [/efn_note] Artest was named the key player in the incident (since it all began with the foul and a threat he made to Wallace before the game), and for this, the NBA suspended him without pay for 86 games.[efn_note]Id. [/efn_note]
Another example of sports violence happens in baseball, after all, the pitcher has “the most dangerous weapon in sports,” the baseball.[efn_note]Yates, supra note 13, at 149. (Citing Don Eugene-Nolan Gibson, Violence in Professional Sports: A Proposal for Self-Regulation, 3 HASTINGS COMM. & ENT L.J. 425, 432 (1980).) [/efn_note] During baseball games, every so often benches from both teams clear and get into the field, and a fight breaks out. Sometimes a pitcher might feel obligated to hit a batter for various reasons, such as: (1) in the previous at bat the batter flaunted a homerun, or ran the bases in a sketchy way; or (2) a pitcher’s teammate had been hit before during the game. In 1920, a player died from a pitch by the opposing team (only known fatality in baseball).[efn_note]Id.; for examples of old school violence in baseball, see DMHighlights, MLB Intentionally Hit Batters, YouTube (January 2, 2018), https://www.youtube.com/watch?v=dX5k5fgDBqk; also see Highlight Reel, MLB Brutal Collision, YouTube (June 16, 2017), https://www.youtube.com/watch?v=SyD1uOxoy5Q. [/efn_note] In recent years, Major League Baseball (“MLB”) and the Major League Players Association (“MLPA”) have implemented new rules to avoid and/or punish intentional or unintentional sport violence. There are now instances where violence is punished by the MLB that used to be part of the game, such as taking down catchers[efn_note]Official Baseball Rule 7.13 (also known as: the Buster Posey Rule), regarding collisions at home plate, states that:
A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other base runners shall return to the last base touched at the time of the collision.
Rule 7.13 comment: The failure by the runner to make an effort to touch the plate, the runner’s lowering of the shoulder, or the runner’s pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner’s buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.
Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.
Official Baseball Rules R. 7.13 (2014), http://mlb.mlb.com/documents/0/4/0/224919040/2017_Official_Baseball_Rules_dbt69t59.pdf.
[/efn_note] and breaking up double plays by sliding into infielders.[efn_note]The new sliding rule, also known as, the Ruben Tejada-Chase Utley Rule. MLB and the MLPA adopted a rule that punishes rolling block slides to break up potential double plays, with hopes to prevent a repeat of the takeout by the base runner Chase Utley that broke the leg of shortstop Ruben Tejada. Under the rules, a base runner must attempt a bona fide slide, this happens by “making contact with the ground ahead of the base, being in position to reach the base with a hand or foot and to remain on it, and sliding within reach of the base without changing his path to initiate contact with a fielder.” According to this rule, base runners cannot “elevate or kick a leg above the fielder’s knee or throw his arm or upper body.” There are exceptions, a base runner that makes contact with a fielder, will not be charged with interference, as long as the runner makes a “permissible slide”. Associated Press, Just call it the Ruben Tejada Rule! MLB changes sliding rule at second base, Silive (January 3, 2019), https://www.silive.com/mets/2016/02/just_call_it_the_ruben_tejada.html. [/efn_note] Why are these rules good for baseball? The no-collision at home plate rule does not eliminate collision type contact plays at the plate. It does however meet it’s purpose: it reduces the risk of serious injury. On the other hand, the purpose of the new sliding rule is to “enhance player safety, reduce incidents of injury”.[efn_note]Id. [/efn_note]
The most common examples of sports violence — or excessive aggressiveness— are the ones related to football or hockey. While there are many examples worth mentioning, I will only focus on one from each sport. During a NHL game, a Canada criminal court prosecuted a Boston Bruins’s player for “assault with a weapon after hitting another player in the head with his [hockey]stick.”[efn_note]Barry, supra note 1, at 6 (also see Tom Spousta, HOCKEY; McSorley Found Guilty; No Jail Time, THE NEW YORK TIMES (October 7, 2000,) for details on Marty McSorley’s criminal conviction and his 18-month probation sentence). [/efn_note] This hit left the other player unconscious.[efn_note]Id. [/efn_note] Meanwhile, in the NFL, Charles Clark, a player from the Cincinnati Bengals, —out of frustration— hit a player from the opposing team from the back after play had stopped. The opposing team’s player sustained severe injuries that led to the end of his football career.[efn_note]Harary, supra note 14, at 199. [/efn_note]
In many situations these violent actions finish athletes’ careers. Should the league continue to discipline the actions? Should courts get more involved? If so, do the athletes that commit the actions have any defenses in their favor?
II. Potential Defenses in Criminal Actions
It is very rare for an athlete to be prosecuted for aggressive plays during a sporting event, and specific situations may limit the prosecutor’s ability to prosecute the offending player.[efn_note]Barry, supra note 1, at 10. [/efn_note] Every excessive sports violence event is different, and the prosecutor must prove that the accused player assaulted another player “purposely, knowingly or recklessly.”[efn_note]MODEL PENAL CODE § 211.1(a) (2017). [/efn_note] Even if there were cause for prosecution against a player, prevailing in criminal court would be very difficult due to the numerous affirmative defenses that the defendant could raise. The Puerto Rico Penal Code states that in order for an action to become a criminal activity, it must be proven beyond reasonable doubt that there was an objective and subjective action. In other words, a behavior contrary to law, is necessary but not sufficient, as there must be a culpable conduct present in the criminal action.[efn_note]See COD. PEN. PR art. 15, 33 LPRA § 5021 (2017) (comentario de Dora Nevares); also see Luis Ernesto Chiesa Aponte. Derecho Penal Sustantivo 218, 250 (2013). [/efn_note] Therefore, “a conduct is only punishable when it is both unlawful and guilty.”[efn_note]Luis Ernesto Chiesa Aponte, Derecho Penal Sustantivo 251 (2013) (translation provided). [/efn_note] Criminal defenses can either excuse or justify a person’s behavior which resulted in the commission of a crime. An excuse exempts the person because the action was not done on purpose; while the justification of a behavior either exempts or reduces the punishment due to the circumstances surrounding the offense.[efn_note]Id. at 218, 250. [/efn_note]
A. Consent in Sports
Many people see athletes (young and professional) as people who participate in these sporting events for the love of game, not with the desire to cause harm. The consent defense is not supported in the Puerto Rico Penal Code because local law favors applying this defense in tort cases rather than criminal cases. However, it can be applied to criminal cases —according to article 6— if the victim’s consent negates one of the elements of punishable crimes.[efn_note]COD. PEN PR art. 6, 33 LPRA § 5006 (2010 & Supl. 2018). [/efn_note] The Model Penal Code, in general, sees this defense the same as the Puerto Rican Penal Code. But, it can be used as a criminal defense when “(a) the bodily injury consented to or threatened by the conduct consented to is not serious; or (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law”.[efn_note]Model Penal Code § 2.11(b) (2017) (emphasis added). [/efn_note]
The consent defense it is very similar to the consent doctrine in Torts; in both criminal and civil cases “the fact-finder must look at all the evidence to determine whether the victim in fact consented.”[efn_note]Richard B. Horrow, Sports Violence: the interaction between private lawmaking and the criminal law 167 FN 661 (1980). [/efn_note] Although the substantive issue of proving if “consent existed is the same, the effect of that consent” is different because criminal cases rely on a state interest which is absent in civil cases.[efn_note]Id. [/efn_note] Still, not every jurisdiction allows this defense.[efn_note]Id. at 168. [/efn_note]
An exception to the application of this defense is criminal cases can be related to injuries suffered in sports. According to the court in Pueblo v. Ruiz, in order to apply the consent defense “(1) the person affected is capable of giving valid consent, (2) he does so voluntarily and intelligently, (3) it is a lawful activity, and (4) the sport’s rules are followed.”[efn_note]Pueblo v. Ruiz, 125 DPR 365, 396 (1990) (translation provided). [/efn_note] Certain types of aggressive plays, in competitive sporting events, receive “automatic consent”, even if such contact leaves a serious injury.[efn_note]Harary, supra note 14, at 205. [/efn_note] When applied to athletic contests, consent —according to the courts— should follow three principles:
First, sports serve a social utility, and this utility should play into the doctrine of consent. It is this component of consent’s application to sports that courts often cite in not allowing defendants to invoke the defense of consent in non-sports-related assaults. Second . . . consent is implied generally rather than explicitly granted and typically turns on objective criteria surrounding the incident rather than on a determination of the subjective willingness of the victim. Third, courts are typically much more willing to allow the defense of consent in situations in which the battery occurred during official play rather than at the end of play or during a timeout.[efn_note]Yates & Gillespie, supra note 13, at 161. [/efn_note]
The main purpose of applying this defense is to prove “that when the victim consents to participating in a particular sport, he or she then consents by the very nature of the sport to certain acts of aggressive contact.”[efn_note]Harary, supra note 14, at 205.[/efn_note] Consequently, Chief Justice Benjamin N. Cardozo in Murphy v. Steeplechase Amusement Co. stated:
One who takes part in . . . a sport[ing event]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.[efn_note]Id. (citing Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482 (N.Y. 1929)). [/efn_note]
Richard B. Horrow discusses how, even though some jurisdictions use the “case-by-case approach”, there are approaches that may be used to test the application of this defense in sports violence cases, such as (i) scope of consent, (ii) rules of the game, (iii) foreseeability, and (iv) effectiveness of the consent.[efn_note]Horrow, supra note 35, at168-85. [/efn_note]
i. Scope of Consent
When a player accepts to play in a sporting event, this participation “is seen as implying consent.”[efn_note]Id. at 168-69. [/efn_note] However, the person being prosecuted has a “privilege [that]is limited to the conduct to which the plaintiff consent[ed].”[efn_note]Id. at 169. (citing W.Prosser, Torts §18, at 103 (1971).) [/efn_note] This means —under this test— if there is no intentional act of violence, different to the one consented, the defendant will not be liable for assault. It is the defendant who has the burden to show “that the supposedly wrongful act took place during the normal flow of the game.”[efn_note]Id. [/efn_note] The hardest part of this test is determining where, when, or how, the violent conduct was not a consented one. Therefore, this test is one with “limited utility”.[efn_note]Id. at 169-70 (citing Note, Consent in Criminal Law: Violence in Sports, 75 Michigan Law Review 148 (1976)). [/efn_note] Meanwhile, since the “athlete’s mental state is limited,” whoever is the fact-finder will probably understand that there was willingness to engage in the sporting event, thus, the fact-finder will likely conclude that “the athlete consented to all acts associated with the game,” and this may be erroneous.[efn_note]Id. at 170. [/efn_note]
ii. Rules of the Game Test
A prosecutor can avoid the consent defense by “basing his[/her] cause of action on the defendant’s violation of a safety rule.”[efn_note]WALTER T. CHAMPION, JR., SPORTS LAW IN A NUTSHELL 202 (5th ed.2017).[/efn_note] This test consists of analyzing the setting —as in the rules and manner in which the game is usually played— to determine if the victim’s participation in the sporting event constitutes a consent to bodily contact.[efn_note]Horrow, supranote 35 ,at 171. [/efn_note] What limits the consent defense in this test is that participating in a game does not mean that a person is consenting to acts which are prohibited by the rules and customs of the game.[efn_note]Id. [/efn_note] Every sport has a rulebook, the Official Rules of Professional Football clearly state —among other things— that “[t]here shall be no unsportsmanlike conduct. This applies to any act which is contrary to the generally understood principles of sportsmanship.”[efn_note]Official Rules of Professional Football, Rule 12 § 3 art. 1 (2017), https://operations.nfl.com/the-rules/2017-nfl-rulebook/#pdf-download. [/efn_note]
There has been a great debate as to whether the rules of the game grant consent only to what is established, nothing more. It has been said —by courts and commentators— that these rules of the game should be the absolute “standard of conduct to which . . . player[s]consent.”[efn_note]Horrow, supra note 35, at 172. [/efn_note] Moreover, Horrow cites an article from as far back as the 19th century that broaches the topic where “each player consents in advance to such injuries as he may suffer so long as they are inflicted by one acting within the rules of the game; but an injury caused by an unfair play is not consented to.”[efn_note]Id. (citing Beale, Consent in the Criminal Law, 8 Harv. L. Rev. 317, 323 (1895)) [/efn_note] Nowadays this statement can be applied in numerous sports violence cases, where a defendant brings the consent defense. Canadian courts have stated that lawful games, such as soccer and football, are already rough and players should be able to restrain themselves as to not harm another player.[efn_note]Id. at 174. See, e.g., Regina v. Moore, [1898] 14 T.R.L. 229; Regina v. Bradshaw [1878] 14 Cox Crim Cas 83. [/efn_note] On the other hand, there have been situations where it has been suggested that even if there is a violation of a safety rule, such conduct might have been consented to.[efn_note]Horrow, supra note 35,at 175. [/efn_note] For example, commentators have stated that during contact games (i.e. football) there is a clear consent to “moderate force”, additionally, players are encouraged to engage on that force even if it surpasses the level of acceptability stated in the rules, thus, players expect more than moderate force.[efn_note]Id. [/efn_note] It is up to the jury to determine if a conduct was careless and in disregard to the safety of others, by considering not only the rules of the game, but the skills and risks a player takes playing the game as well.[efn_note]Id. at 176. [/efn_note]
iii. Foreseeability Test
This approach analyses the reasonableness and seriousness of a violent action. This test suggests that the injured player only consented to acts or harms that could be foreseeable before the game.[efn_note]Id. at 180-81. [/efn_note] Nonetheless, this approach has its flaws. A player could enter a game, and not foresee excessive violence, therefore it would be unfair to believe that he/she consented to this unsportsmanlike conduct. Horrow mentions an example provided by the Michigan Law Review that is very relevant to foreseeability combined with the element of malicious intent. The example takes you to a baseball game, while it may be foreseeable to get hit by a pitch, it is not foreseeable to know if a pitcher’s real intent is to cause harm, and by intentionally hitting a batter the pitcher could be criminally liable.[efn_note]Id. at 183. (citing Michigan Law Review, Consent in Criminal Law: Violence in Sports, 75 MICH. L. REV. 148, 175 (1976)). [/efn_note]
iv. Effectiveness of the Consent
As previously stated, consent as a defense has a bigger impact in civil actions. The reason for this is that even if a victim does consent to bodily harm, this consent is ineffective. The victim in criminal cases “is powerless to waive the interest” of the given consent, however, the state —who brings the criminal action to the courts— may have an interest of safe and healthy citizens. This means that while the victim can waive their interest, they cannot waive the state’s.[efn_note]Id. [/efn_note] Therefore, “[t]he victim can consent and thereby satisfy the state’s interest in protecting individuals from unwanted intrusions. [Their] consent, however, cannot satisfy any other interests of the state.”[efn_note]Id. at 184, FN 723. [/efn_note] Thus, in a sporting event, where an excessive use of force is applied, this defense may not be effective. The consent defense will be effective when it destroys the punishable action of the person accused, therefore, satisfying the state’s interest.[efn_note]Id. [/efn_note]
B. Self-Defense
i. Legal Basis
Self-defense is used in cases relevant to crimes against the person.[efn_note]ARNOLD H. LOEWY, CRIMINAL LAW IN A NUTSHELL 75 (2009). [/efn_note] In order to prevent immediate unlawful harm, a person may do any reasonable violent act.[efn_note]Id. [/efn_note] Puerto Rico Penal Code states that a person may not be prosecuted if the illegal act was to defend his/her “person, home, property, or the rights of others” only when it was “reasonably believed that there was an imminent threat.”[efn_note]COD. PEN. PR. art. 25, 33 LPRA § 5038 (2010 & Supl. 2018) (translation provided). [/efn_note] This penal code also emphasizes that “no more damage than necessary can be inflicted to repel or prevent the damage.”[efn_note]Id. (translation by the author). [/efn_note] In Puerto Rico the requirements to invoke this defense are the following: “reasonable belief that imminent harm is to be suffered; rational necessity of the means used to prevent or repel damage; absence of provocation from who invokes the defense.”[efn_note]Reyes Salcedo v. Policía de P.R., 143 DPR. 85, (1997) (translation provided). [/efn_note] Dora Nevares explains that imminent threat in this defense means “[a]person has to reasonably believe that the attack, be it personal or against their property or those of a third party, will occur in the immediate future.”[efn_note]DORA NEVARES-MUÑIZ, COMENTARIOS AL CODIGO PENALl DE PUERTO RICO 53 (2015) (translation provided). [/efn_note] This usually requires that someone that has been assaulted by another does what is necessary to defend from physical harm when there is no time to “resort to the law.”[efn_note]WAYNE R. LAFAVE, CRIMINAL LAW 710 (2017). [/efn_note]
LaFave mentions that the amount of force, which a person may use to defend him/herself, must be proportional to the threat he/she wants to avoid.[efn_note]Id. at 713. [/efn_note] The key factor in self-defense is that the person must reasonably believe in “the necessity of using force to prevent [physical]harm.”[efn_note]Id. at 715. [/efn_note] LaFave adds that it must not be an “honest belief”, but that the defendant actually believed that the only way to prevent the harm was to use force.[efn_note]Id. at 715-17. [/efn_note] The Model Penal Code supports this by stating “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against [an attack from another person]on the present occasion.”[efn_note]MODEL PENALCODE § 3.04(1) (2017). [/efn_note] Like in the Puerto Rico Penal Code, LaFave acknowledges case law and legislations supporting —and explicitly stating— that self-defense requires the defendant to believe that the harm is imminent.[efn_note]LAFAVE supra note 70, at 718. [/efn_note]
ii. Applied to Sports
Self-defense is a common defense used in sports. It has specially been used in Canadian cases. An athlete who uses force to protect himself from bodily harm caused by another, definitely has a defense against battery.[efn_note]Yates, supra note 13, at 166. [/efn_note] For this defense to be successful, “the defendant must show that he was not the aggressor.”[efn_note]CHAMPION, JR., supra note 49, at 361 [/efn_note] This will make it difficult to use in sports violence cases since “the athlete will often fail to qualify as a non-aggressor.”[efn_note]Id. [/efn_note] Due to its limitations, Horrow states that this defense “cannot be relied upon by the defendant.”[efn_note]HORROW, supra note 35, at 204. [/efn_note] Some of these limitations have to do with the proportion of the force used by the athlete. If the force was beyond the necessary force to self-protect, as in “vindictive rather than preventive,” then self-defense is not applicable.[efn_note]Id. at 204-05. [/efn_note] Also, since this defense requires zero provocation from the defendant, then the burden of proof falls on the defense attorney, for they have to prove that the defendant “was about to be placed in immediate. . . bodily harm,” therefore, their action was reasonable enough to prevent harm.[efn_note]Id. at 205. [/efn_note] Finally, if an athlete at any moment was able to walk away from a fight, thus avoiding the danger, then self-defense will not work as an excuse because he/she stood up to the opponent rather than faced another direction.[efn_note]Id. at 204-05. Also see Yates, supra note 13, at 166. [/efn_note]
Although this is a defense with many limitations, Canadian courts were able to employ it in Regina v. Maki and Regina v. Green. Horrow points towards the trial court’s ruling in Green where “the blow struck by Mr. Green was struck almost immediately after the blow . . . which had been struck at him by Mr. Maki. I do not think that Mr. Green was doing anything more in the circumstances than protecting himself.”[efn_note]HORROW, supra note 35, at 204. [/efn_note]
C. Involuntary Reflex
i. Legal Basis
The Puerto Rico Penal Code does not recognize this as a defense. However, it does follow the Model Penal Code, where it states that “[a]person is not guilty of an offense unless his[/her] liability is based on conduct that includes a voluntary act or the omission to perform an act of which he[/she] is physically capable.” [efn_note]MODEL PENAL CODE § 2.01(a) (2017). [/efn_note] In the Puerto Rico Penal Code, article 18(2)(a) states that voluntary act will not apply to a body movement caused by reflex or convulsion. [efn_note]COD. PEN. PR. art. 18, 33 LPRA § 5031 (2010 & Supl. 2018). [/efn_note] Basically, an involuntary act excuses the athlete for an offense when “the conduct [of the athlete]is not a product of the [athlete’s] effort or determination.”[efn_note]PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 260 (1984). [/efn_note]
ii. Applied to Sports
In the past, this has been a successful defense for athletes prosecuted for violent acts. The reason for this is: (1) “intent is a difficult element to prove in sports violence cases even without the ‘reflex’ argument as a complicating factor”; (2) athletes are trained from a very early age that intimidation and aggressiveness against opponents is necessary in contact sports; and (3) the high adrenaline and emotion during a sporting event is “conducive to a player ‘losing control’.”[efn_note]HORROW, supra note 35, at 201-02. [/efn_note] In State v. Forbes, it was argued that violence in sports is present in an athlete’s life since the beginning of his/her sport career.[efn_note]Id. at 201. [/efn_note] Courts are calling these assaults as instinctive, proving that there was no intent to commit an assault.[efn_note]Yates, supra note 13, at 166. [/efn_note] Many of these cases result from instinctive actions that athletes do not intentionally think about doing, they do it unconsciously.
In a Canadian case, Regina v. Leyte, the court held that in order to declare an instinctive action as an assault, the burden of proof must show that the assaulting player’s reaction was irrational under specific circumstances, and not during playing time.[efn_note]HORROW, supra note 35, at 203 (citing Regina. v. Leyte, [1973] 13 C.C.C.2d 458 (Ont.Prov.Cr.Crim.Div.)). [/efn_note] However, sports attorney Bob Woolf criticized this defense, stating that the “heat of the game has always been a kind of moral defense in sports to excuse bad manners and irrational acts”.[efn_note]Id. at 203-04 (citing BOB WOOLF, BEHINDCLOSED DOORS 141 (1976)). [/efn_note] This, in turn, may lead people to believe that athletes will use this excuse to get away from basically anything during the course of the game.
D. Provocation
i. Legal Basis
The defendant must have been provoked sufficiently enough that it “would cause a normal person to lose self-control.”[efn_note]ROBINSON, supra note 86, at 484. [/efn_note] For this to be used as a defense, the defendant must have acted “in the heat of the passion”, meaning, “the provocative act [was]sufficient to engender such passion in the heart of a reasonable person, and . . . there must not have been a sufficient passage of time to create a ‘cooling off period’ for the reasonable person.”[efn_note]LOEWY, supra note 64, at 36 (2009).[/efn_note] Some states have categories under this defense known as “legally sufficient”, which include: “adultery, fear, battery, assault . . . .” However, these categories do not guarantee that a jury will rule in favor of the defendant.[efn_note]Id. [/efn_note] Most states hold that “mere words”, no matter how harsh, are not adequate for a provocation defense.[efn_note]Id. at 36-37. [/efn_note]
ii. Applied to Sports
This defense is rarely used in sports, mainly because “many jurisdictions do not recognize the defense.”[efn_note]HORROW, supra note 35, at 200. [/efn_note] Moreover, it requires “that the defendant [be]‘provoked into retaliation.’”[efn_note]Id. [/efn_note] In a traditional Canadian case, Agar v. Canning, the Canadian court held that a “retaliatory blow struck by the defendant in anger during the course of a hockey game, even though provoked by the plaintiff, went beyond the immunity conferred on players. . . .”[efn_note]Id. (citing Agar v. Canning, [1965] 54 W.W.R. 302 (Man. Q.B.)). [/efn_note]
E. CTE
i. What is CTE?
According to the Concussion Legacy Foundation, “Chronic Traumatic Encephalopathy (CTE) is a degenerative brain disease found in [people]with a history of repetitive brain trauma.”[efn_note]What is CTE?, CONCUSSION LEGACY FOUNDATION, https://concussionfoundation.org/CTE-resources/what-is-CTE (last visit May 16, 2018). [/efn_note] These constant hits to the head, or repetitive brain trauma, are not merely a few concussions since “most people diagnosed with CTE suffered hundreds or thousands of head impacts over the course of many years.”[efn_note]Id. [/efn_note] These impacts, do not necessarily have to be powerful concussions; simple repetitive hits to the head could factor in developing this disease.[efn_note]Id. [/efn_note] This is true, because repeated hits to the head “trigger[]progressive degeneration of the brain tissue.”[efn_note]Frequently Asked Questions About CTE, BOSTON UNIVERSITY RESEARCH CTE CENTER, https://www.bu.edu/cte/about/frequently-asked-questions/ (last visit May 16, 2018). [/efn_note] CTE has been seen in teenagers, although, symptoms —in mood and behavior—from the head collisions start showing up much later.[efn_note]CONCUSSION LEGACY FOUNDATION,supra note 99. [/efn_note] Symptoms range from “problems with judgment, reasoning, problem solving, impulse control, [depression, paranoia], and aggression.”[efn_note]BOSTON UNIVERSITY RESEARCH CTE CENTER, supra note 102. [/efn_note] As time passes, the disease worsens, and new symptoms appear attacking the memory and judgment, which could eventually lead to dementia.[efn_note]CONCUSSION LEGACY FOUNDATION,supra note 99. [/efn_note] Even with all the research that has been done, “CTE can only be diagnosed after death through brain tissue analysis.”[efn_note]Id. [/efn_note]
ii. Impact in Sports
CTE is usually found in contact sport athletes because of the commitment to constant —and purposeful— hits to the head.[efn_note]Id. [/efn_note] The Concussion Legacy Foundation points out the cases (by sport) where CTE has been found: tackle football (200+ cases) because of hits to the helmet, hockey (20+ cases) on account of fighting, boxing (50+ globally) due to punches to the head, rugby (5+ cases), soccer (10+ globally), and fewer than three cases in baseball and basketball (each).[efn_note]Id. [/efn_note] Athletes who have a long tenure playing in contact sports have a higher tendency of developing CTE than those with shorter careers. Doctor Bennet Omalu, a neuropathologist, stated that “[a]football player is more likely to be violent than someone who didn’t play, because of the brain damage. It doesn’t mean every football player will be violent, but there’s an increased risk.”[efn_note]John McDermott, The Connection Between Concussions, CTE and Acts of Violence, MEL MAGAZINE (July 12, 2017) https://melmagazine.com/the-connection-between-concussions-cte-and-acts-of-violence-65330058f80.[/efn_note]
iii. Developing a Criminal Defense
Even though there probably won’t be aggressive or excessive plays caused directly by CTE —because the symptoms appear many years after the repetitive hits to the head— many athletes due eventually get charged for criminal acts, most of them football players. Since this disease is still being researched in order to develop a way to detect it, it will be difficult to use as a defense. However, as medical technology advances, it is possible that this could be a relevant justification defense when representing professional athletes. It is time that our criminal justice system looks at the significant impact this disease has on behavior and the role it plays as a criminal defense.
It would be irresponsible to believe that CTE is not a possible —if not the primary— reason some athletes have committed heinous crimes. It all comes down to realizing that this is a degenerative disease that worsens with time. Much like other mental illnesses, people end up depending on others to do daily things and/or end up in nursing homes or psychiatric wards. Defense attorneys representing athletes who suffer from CTE at the moment they committed a crime, should be able to present CTE as a defense for the following reasons: to show jurors why defendants who suffer from CTE do not have the required control to have a rational judgment and control their impulses; to show that, according to the symptoms —impulse control, unintended aggression, and confusion— there was no specific intent; and to try to prove that, depending on the defendant’s mental condition, he may be deemed incompetent to stand trial. These reasons should be strong enough —along with proof that the athlete does in fact suffer from CTE— to present gaps in the reasonable doubt standard required for a conviction.
Although a better diagnosis is being developed, in the end, it will come down to answering if CTE led to the crime or if there was actual intent. There is no doubt that this defense is far from being useful in court at the moment. However, it is worth noting that “CTE is a specific disease with credible diagnostic tools that will only get better with time.”[efn_note]Doree Lewak, Athletes charged with heinous crimes may try the ‘CTE defense’, NEW YORK POST (July 18, 2016), https://nypost.com/2016/07/18/athletes-charged-with-heinous-crimes-may-try-the-cte-defense/. [/efn_note] People may argue that using this disease would be as inconvenient and unsuccessful as the insanity defense. Nonetheless, “[w]hen people claim they’re insane, it’s hard to establish. This, [CTE defense] is going to boil down to science, which is developing.”[efn_note]Id. [/efn_note] The interest in building a case defense on CTE is just starting. There is still a long road ahead before experts can reach definitive conclusions to help juries consider complex and difficult issues like criminal responsibility on account of mental illness.
iv. Notable Cases
The following cases bear relevance to CTE and its use as a defense. Particularly, how taking CTE into account might have affected the jury’s verdict.
a. Aaron Hernandez
The most recent, and very tragic case of CTE, came from Aaron Hernandez, a former well-known professional football player from the New England Patriots who was convicted of first-degree murder. Hernandez played tight end, and received thousands of hits on the football field which eventually led to “mood swings, violent tendencies and memory loss.”[efn_note]J. Amy Dillard and Lisa A. Tucker, Is C.T.E. a Defense for Murder?, NEW YORK TIMES (September 22, 2017), https://www.nytimes.com/2017/09/22/opinion/aaron-hernandez-cte.html. [/efn_note] After his death, his brain was donated to Boston University’s CTE Research Center, where, according to his lawyers, they found that the disease was the “worst case doctors had seen in someone so young.”[efn_note]Id.[/efn_note] CTE’s statistics and behavioral manifestations could have been a game changer during the jury’s analysis. Using CTE as a defense, Dillard and Tucker analyzed a possible scenario if Hernandez would have been tried today. By using the insanity defense:
Hernandez might successfully assert that, when he killed Mr. Lloyd, he suffered a mental defect that rendered him substantially unable to conform his conduct to the requirements of the law, utterly unable to make himself behave as the law requires. Could the evidence of C.T.E. now create a reasonable doubt about his criminal responsibility? Almost certainly.[efn_note]Id. [/efn_note]
With this in mind, Dillard and Tucker suggest that, although Hernandez’s CTE diagnosis confirmation was postmortem, there is enough “substantial evidence” to prove that the conviction of first-degree murder was wrong concluding that: “it is likely that a lifetime of playing football —not Mr. Hernandez’s will— was to blame.”[efn_note]Id. [/efn_note]
b. O.J. Simpson
It has been said that O.J. Simpson, another notable professional football player, who was charged with a double murder —one of them his ex-wife— but found not guilty, was also influenced by this disease. This comes from a belief Dr. Omalu has regarding the reason for “Simpson’s behavior and run-ins with the law.”[efn_note]Bruce Y. Lee, Could Concussions Become A Legal Defense?, FORBES (February 5, 2016), https://www.forbes.com/sites/brucelee/2016/02/05/concussions-as-a-legal-defense/#71c2cdc53984. [/efn_note] Though Simpson was acquitted from his murder charges, he “lost a wrongful death civil suit” brought by the victims’ families, and was ordered to pay nearly thirty-four million dollars in damages.”[efn_note]ESPN.com news services, Dr. Bennet Omalu ‘would bet my medical license’ that O.J. Simpson has CTE, ESPN (January 30, 3016),https://www.espn.com/nfl/story/_/id/14677428/dr-bennet-omalu-bet-my-medical-license-oj-simpson-cte. [/efn_note] A decade later, Simpson was charged and “found guilty of [armed]robbery and kidnapping and was sentenced to up to thirty-three years in prison.”[efn_note]This time, OJ Simpson was arrested and charged in Las Vegas for armed robbery after attempting to steal sports memorabilia that he said belonged to him. Id.; also see Jessica Rousey, Can We Blame CTE For O.J. Simpson’s Criminal Past?, The Odyssey Online (February 8, 2016), https://www.theodysseyonline.com/oj-simpson-cte. [/efn_note] After this conviction, Simpson tried to use his past concussions for the purpose of requesting a new trial, but the Court denied his petition and reasoning.[efn_note]Simpson and his attorney filed a sworn statement outlining his concussion history. He stated that while playing through his college and professional career “he sustained ‘numerous blows to [his]head and/or landed on [his]head violently’”. He also added that, during many of the games he played he was “knocked out of games” (taken out of the game) because of the constant blows to the head, and that in some occasions he “‘continued playing despite hard blows to [his]head’”. Johnny Dodd, Does O.J. Simpson Have CTE? Famed Concussion Forensic Pathologist Dr. Bennet Omalu: ‘I Would Bet My Medical License On It’, People (January 27, 2016), https://people.com/crime/dr-bennet-omalu-thinks-o-j-simpson-suffers-from-cte/; ESPN.com news services, supra note 117; Rousey, supra note 118. [/efn_note]
Throughout Simpson’s career, he absorbed many hits to the head, from playing in high school, college, and later in the NFL. Dr. Omalu has explained that, throughout his career, Simpson, must have “sustained thousands of blows to the head”[efn_note]Rousey, supra note 118. [/efn_note], which in future years may be strong evidence of CTE.[efn_note]ESPN.com news services, supra note 117. [/efn_note] As he explains it, in the course of just one American football game—even with head protection (helmets)— “many players suffer [from numerous]cranial impacts,” and the effects of those impacts “accumulate over time”.[efn_note]Rousey, supra note 118. [/efn_note] There is an interesting observation in which Dr. Omalu pointed out the fact that “Simpson’s head is rather large and [this might suggest]that larger heads could suffer greater impact”[efn_note]Lee, supra note 116. [/efn_note] mainly because “the momentum of [the]impact would be bigger.”[efn_note]Dr. Omalu described this momentum as “basic physics.” ESPN.com news services, supra note 117 (quoting Dr. Omalu in an interview for People’s Magazine)(emphasis provided); see Dodd, supra note 119, to read the article where People Magazine interviewed Dr. Omalu.[/efn_note]
Although Dr. Omalu cannot confirm that OJ Simpson does suffer from CTE, he has stated that, based on the previously discussed regarding the head traumas and the size of his head, it is “‘more likely than not’ that Simpson is affected by CTE.”[efn_note]Rousey, supra note 118 (quoting Dr. Omalu). [/efn_note] In fact, after his release from prison (a couple of years ago), Simpson confessed in an interview to ESPN, that he fears he might have CTE. In that interview, he expressed that some days, specially when he feels tired, that his mind goes blank and forgets the words he wants to use (even simple words) or “‘the name of someone [he]knows.’”[efn_note]Mike Rodak, O.J. Simpson: ‘I have days I can’t find words’, ESPN (March 16, 2018), https://www.espn.com/nfl/story/_/id/22795470/oj-simpson-says-worried-cte. [/efn_note]
c. The movie “Concussion”[efn_note]Concussion (2015). [/efn_note]
This film portrays Dr. Bennet Omalu, the real-life doctor who, while working as a forensic pathologist in Pittsburgh, discovered a new and terrifying brain disorder that he named Chronic Traumatic Encephalopathy, or CTE. He discovered it by performing an autopsy on a retired Pittsburgh Steeler named Mike Webster, this is also portrayed in the movie. What happened was that, Webster left the game as a hero and began losing his mind well before his death at fifty; before his death he is seen living in his pickup truck, huffing turpentine. A fellow player, himself to suffer a similar fate, tries to help him out. Neither is able to understand what’s happening to them. Throughout the movie, Dr. Omalu figures it out: the persistent head injuries sustained in football play shake up the brain, he explains that unlike other mammals, humans don’t have built-in shock absorbers for their grey matter and release a protein that builds up and causes hallucinations, memory loss, and much more trauma. However, as Omalu’s boss and mentor, puts it, Omalu was going up against an organization that “owns a day of the week.” Omalu thought the NFL would have been glad of his findings, and use some American ingenuity to do something about the problem. But the NFL did not appreciate such findings.
This movie shows how CTE was discovered; it presents scenes where the symptoms are very identifiable, and it portrays how a big company, like the National Football League, used to focus on more on selling games than player safety. Now days, the NFL has implemented various rules regarding the blows to the head, in hopes of providing long-term safety in American football.
Conclusion
There is no doubt that contact sports —and some non-contact— have a degree of violence.[efn_note]CHAMPION, JR., supra note 49, at 351. [/efn_note][1] Even though sports leagues have taken steps into reducing hard contact plays, there is still a significant amount of violence in professional sports, which transmits to young athletes and amateurs.[efn_note]Id. [/efn_note][2] Although one of the ways to exercise a bigger control on violence is through civil actions, most professional leagues have some rules and disciplinary actions to penalize and control unnecessary violence. These rules and disciplinary actions attend to the leagues’ desire to prevent players from constantly suing each other. However, players still routinely use excessive force during plays or after a play. Criminal sanctions might be useful; yet, criminal liability is rarely taken to court because “[t]he trial of a professional athlete would be a highly publicized media event”.[efn_note]Id. at 352. [/efn_note][3] At the same time, a trial like this one could alter or end an athlete’s career. Violence on a regular day is viewed differently than violence in a sporting event. That is, because during a sporting event the participants know what they are getting into, they know there will be violence and possible bodily contact, but still assume the risk. The key question is whether this aggressive act is accidental and within the rules, or if it is criminal conduct. Criminal courts should handle cases where there is no consent for excessive and unforeseeable aggressive plays because sports leagues are biased (meaning, they are more inclined to believe that aggressive plays bring higher ratings) and thus, do not properly handle these situations.
While it is rare for a sport’s violence case to reach the criminal court —either in the United States or in Puerto Rico—, it is necessary to be prepared either on the prosecuting side or the defense. It is important to be able to distinguish between a foreseeable conduct and one that is not. An athlete that consents to play a sport can foresee acts that are reasonably common to that sport. On the other hand, if there is excessive bodily contact that has the qualities of an unsportsmanlike conduct, and a reasonable person could not foresee it as a normal action in the sport, it should be remediable through criminal sanctions. In the case that an athlete does play by the rules and uses moderate force but still gets prosecuted for assault, the defenses that could help include: consent, self-defense, involuntary reflex, and CTE —even though this is still far from being useful—.
This article explained the pros and cons from each defense, mainly focusing on football and hockey, and in some instances basketball and baseball. The consent defense should be allowed in certain circumstances; when it was a foreseeable act. On the other hand, unforeseeable aggressions are just common assaults. Another important factor on why the consent defense might not work, is that sometimes the state might have a bigger interest in protecting social interest of preventing unwanted intrusions, than the consented interest of the victim. If an athlete wishes to invoke self-defense in order to back up the excessive force, it must be if the aggressive contact was not during an ongoing play, therefore making it unforeseeable.
It all comes down to the future of the sports violence defense of CTE; although it may principally apply to football players and boxers. While there is not sufficient evidence to prove that CTE deprives players of the ability to handle conflict in a reasonable way, studies (such as the ones done by Dr. Omalu) have showed that there is a correlation between people affected by CTE and the choices they make as it progresses. Although there is still not a way to diagnose people with these symptoms while they are alive, medical technology is advancing and in a few years, there will probably be a way to properly use this in court. This defense could be used, along with the insanity defense, to persuade the jury by presenting the symptoms, expert testimony to confirm the symptoms, and their connection to repetitive hits to the head. This should constitute a valid defense for violent actions of athletes who suffer from repetitive hits to the head throughout their careers. While this defense will not affect the athlete’s culpability (diminished capacity does not negate responsibility), it might affect their punishment. Thus, it might be used as an argument in mitigating the terms of a sentence.
