{"id":2133,"date":"2019-11-07T13:27:42","date_gmt":"2019-11-07T17:27:42","guid":{"rendered":"http:\/\/revistajuridica.uprrp.edu\/inrev\/?p=2133"},"modified":"2019-11-07T13:27:42","modified_gmt":"2019-11-07T17:27:42","slug":"whats-the-game-plan-developing-criminal-defenses-in-sports-violence","status":"publish","type":"post","link":"https:\/\/derecho.uprrp.edu\/inrev\/2019\/11\/07\/whats-the-game-plan-developing-criminal-defenses-in-sports-violence\/","title":{"rendered":"What\u2019s the game plan? Developing criminal defenses in sports violence"},"content":{"rendered":"\n\t\t\t\t\n

ARTICLE<\/strong><\/p>\n\n\n\n

By:<\/strong> Gretchen M. Col\u00f3n Fuentes<\/strong><\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

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\u2019 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 \u00adis to deal with criminal law violations with hopes of not going into litigation. In short, violence in sports has become a safe space<\/em> for unpunished crimes.<\/p>\n\n\n\n

Part of the legal society finds that only when violence is committed \u201coutside the scope of the game\u201d it is suitable to charge criminal penalties.[efn_note]Mathew P. Barry et al<\/em>., Judicial Opinion on the Criminality of Sports Violence in the United States<\/em>, 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 \u201cwould destroy [the]fundamental aspect[s]of\u201d a sport.[efn_note]Id.<\/em> [\/efn_note] These aspects consist in success and competitiveness, and athletes realize that aggressiveness and intimidation helps in accomplishing the team\u2019s success. Living in a world where everything is recorded, posted on the Internet, and shown on T.V., sports violence \u201cpose a significant threat to our society\u201d as amateur athletes and children try to replicate what professional athletes portray.[efn_note]Id. <\/em>at 4.[\/efn_note]\n\n\n\n

In Puerto Rico we rarely see excessive violence in sports that could end an athlete\u2019s career. However, with rise of criminality on the island,[efn_note]See Estad\u00edsticas de Incidencia Criminal, Polic\u00eda 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 \u2014and sport\u2014 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. <\/p>\n\n\n\n

I. Sports Violence<\/strong><\/p>\n\n\n\n

Sports violence is not a new trend. Although it has always been present in sports \u2014mainly hockey and American football\u2014 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. <\/em>at 681. [\/efn_note] (2) \u201cviolence in sports may encourage in other areas.\u201d[efn_note]Barry, supra<\/em> note 1, at 7. [\/efn_note] Living in a media era, society \u2014fans\u2014 who follow sports see these professional athletes \u2014who act unprofessionally and aggressive\u2014 as heroes<\/em>.[efn_note]Kevin Fritz, Going to the Bullpen: Using Uncle Sam to Strike Out Professional Sports Violence<\/em>, 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\u2019s move is illegal. Competition, from a very early age, is taught worldwide, and this produces an idea of greatness in people\u2019s minds. This idea of greatness is eventually developed into the idea of doing whatever it takes to win \u2014e.g. use excessive force\u2014. This, in turn, might lead to \u201c[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.\u201d[efn_note]Barry, supra<\/em> note 1, at 8. [\/efn_note]\n\n\n\n

A. Sports<\/em><\/p>\n\n\n\n

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<\/em> to achieving a goal, making excessive use of force a part of the game.[efn_note]Id.<\/em> 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.<\/em> 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.<\/p>\n\n\n\n

B. Moments of Sports Violence in History<\/em><\/p>\n\n\n\n

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 \u2014Rudy Tomjanovich\u2014 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 \u201ca fractured jaw, broken nose, skull fracture, facial lacerations, brain concussion and spinal fluid leakage from the brain cavity.\u201d[efn_note]Jeff Yates & William Gillespie, The Problem of Sports Violence and the Criminal Prosecution Solution<\/em>, 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<\/em>, 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? <\/p>\n\n\n\n

What about on court violence that turns into off-court\u2014real life\u2014violence? 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, \u201cRon Artest and Ben Wallace began a fight that turned into a full-blown brawl.\u201d[efn_note]Basketball, This Is What Really Happened At The Malice At The Palace<\/em>, 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 \u2013 Full<\/em>, YouTube (April 14, 2014), https:\/\/www.youtube.com\/watch?v=gQIIOWPNYM0, to view the historic brawl. [\/efn_note][1]<\/a> 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\u2019s table near the broadcasters trying to relax and cool off, and \u201ca cup came flying in from the stands.\u201d[efn_note]Id<\/em>. [\/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<\/em>. [\/efn_note] After the incidents, Artest \u201cclaimed he wasn\u2019t trying to hurt anyone\u201d, he also said that he didn\u2019t 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<\/em>. [\/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<\/em>. [\/efn_note]\n\n\n\n

Another example of sports violence happens in baseball, after all, the pitcher has \u201cthe most dangerous weapon in sports,\u201d the baseball.[efn_note]Yates, supra<\/em> note 13, at 149. (Citing<\/em> 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\u2019s 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.<\/em>; for examples of old school violence in baseball, see DMHighlights, MLB Intentionally Hit Batters, <\/em>YouTube (January 2, 2018), https:\/\/www.youtube.com\/watch?v=dX5k5fgDBqk; also see<\/em> Highlight Reel, MLB Brutal Collision<\/em>, YouTube (June 16, 2017), https:\/\/www.youtube.com\/watch?v=SyD1uOxoy5Q. [\/efn_note] In recent years, Major League Baseball (\u201cMLB\u201d) and the Major League Players Association (\u201cMLPA\u201d) 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:<\/p>\n\n\n\n

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. <\/p>\n\n\n\n

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. <\/p>\n\n\n\n

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. <\/p>\n\n\n\n

Official Baseball Rules R. 7.13 (2014), http:\/\/mlb.mlb.com\/documents\/0\/4\/0\/224919040\/2017_Official_Baseball_Rules_dbt69t59.pdf. <\/p>\n\n\n\n

[\/efn_note] and breaking up double plays by sliding into infielders.[efn_note]The new<\/em> 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<\/em>, this happens by \u201cmaking 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.\u201d According to this rule, base runners cannot \u201celevate or kick a leg above the fielder’s knee or throw his arm or upper body.\u201d 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 \u201cpermissible slide\u201d. Associated Press, Just call it the Ruben Tejada Rule! MLB changes sliding rule at second base<\/em>, 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<\/em> plays at the plate. It does however meet it\u2019s purpose: it reduces the risk of serious injury. On the other hand, the purpose of the new sliding rule is to \u201cenhance player safety, reduce incidents of injury\u201d.[efn_note]Id<\/em>. [\/efn_note]\n\n\n\n

The most common examples of sports violence \u2014 or excessive aggressiveness\u2014 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\u2019s player for \u201cassault with a weapon after hitting another player in the head with his [hockey]stick.\u201d[efn_note]Barry, supra<\/em> note 1, at 6 (also see Tom Spousta, HOCKEY; McSorley Found Guilty; No Jail Time<\/em>, THE NEW YORK TIMES (October 7, 2000,) for details on Marty McSorley\u2019s criminal conviction and his 18-month probation sentence). [\/efn_note] This hit left the other player unconscious.[efn_note]Id. <\/em>[\/efn_note] Meanwhile, in the NFL, Charles Clark, a player from the Cincinnati Bengals, \u2014out of frustration\u2014 hit a player from the opposing team from the back after play had stopped. The opposing team\u2019s player sustained severe injuries that led to the end of his football career.[efn_note]Harary, supra<\/em> note 14, at 199. [\/efn_note]\n\n\n\n

In many situations these violent actions finish athletes\u2019 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? <\/p>\n\n\n\n

II. Potential Defenses in Criminal Actions<\/strong><\/p>\n\n\n\n

It is very rare for an athlete to be prosecuted for aggressive plays during a sporting event, and specific situations may limit the prosecutor\u2019s ability to prosecute the offending player.[efn_note]Barry, supra<\/em> 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 \u201cpurposely, knowingly or recklessly.\u201d[efn_note]MODEL PENAL CODE \u00a7 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<\/em> COD. PEN. PR art. 15, 33 LPRA \u00a7 5021 (2017) (comentario de Dora Nevares); also see<\/em> Luis Ernesto Chiesa Aponte. Derecho Penal Sustantivo 218, 250 (2013). [\/efn_note] Therefore, \u201ca conduct is only punishable when it is both unlawful and guilty.\u201d[efn_note]Luis Ernesto Chiesa Aponte, Derecho Penal Sustantivo 251 (2013) (translation provided). [\/efn_note] Criminal defenses can either excuse or justify a person\u2019s 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<\/em>. at 218, 250. [\/efn_note]\n\n\n\n

A. Consent in Sports<\/em><\/p>\n\n\n\n

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 \u2014according to article 6\u2014 if the victim\u2019s consent negates one of the elements of punishable crimes.[efn_note]COD. PEN PR art. 6, 33 LPRA \u00a7 5006 (2010 & Supl. 2018). [\/efn_note] The Model Penal Code<\/em>, in general, sees this defense the same as the Puerto Rican Penal Code.<\/em> But, it can be used as a criminal defense when \u201c(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\u201d.[efn_note]Model Penal Code \u00a7 2.11(b) (2017) (emphasis added). [\/efn_note]\n\n\n\n

The consent defense it is very similar to the consent doctrine in Torts; in both criminal and civil cases \u201cthe fact-finder must look at all the evidence to determine whether the victim in fact consented.\u201d[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 \u201cconsent existed is the same, the effect of that consent\u201d is different because criminal cases rely on a state interest which is absent in civil cases.[efn_note]Id.<\/em> [\/efn_note] Still, not every jurisdiction allows this defense.[efn_note]Id. <\/em>at 168. [\/efn_note]\n\n\n\n

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<\/em>, in order to apply the consent defense \u201c(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.\u201d[efn_note]Pueblo v. Ruiz, 125 DPR 365, 396 (1990) (translation provided). [\/efn_note] Certain types of aggressive plays, in competitive sporting events, receive \u201cautomatic consent\u201d, even if such contact leaves a serious injury.[efn_note]Harary, supra<\/em> note 14, at 205. [\/efn_note] When applied to athletic contests, consent \u2014according to the courts\u2014 should follow three principles:<\/p>\n\n\n

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<\/em> note 13, at 161. [\/efn_note]\n\n\n

The main purpose of applying this defense is to prove \u201cthat 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.\u201d[efn_note]Harary, supra<\/em> note 14, at 205.[\/efn_note] Consequently, Chief Justice Benjamin N. Cardozo in Murphy v. Steeplechase Amusement Co.<\/em> stated:<\/p>\n\n\n

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.<\/em> (citing<\/em> Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482 (N.Y. 1929)). [\/efn_note]\n\n\n

Richard B. Horrow discusses how, even though some jurisdictions use the \u201ccase-by-case approach\u201d, 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<\/em> note 35, at168-85. [\/efn_note]\n\n\n\n

i. Scope of Consent<\/p>\n\n\n\n

When a player accepts to play in a sporting event,  this participation \u201cis seen as implying consent.\u201d[efn_note]Id. <\/em>at 168-69. [\/efn_note] However, the person being prosecuted has a \u201cprivilege [that]is limited to the conduct to which the plaintiff consent[ed].\u201d[efn_note]Id. <\/em>at 169. (citing<\/em> W.Prosser, Torts \u00a718, at 103 (1971).) [\/efn_note] This means \u2014under this test\u2014 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 \u201cthat the supposedly wrongful act took place during the normal flow of the game.\u201d[efn_note]Id.<\/em> [\/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 \u201climited utility\u201d.[efn_note]Id.<\/em> at 169-70 (citing<\/em> Note, Consent in Criminal Law: Violence in Sports<\/em>, 75 Michigan Law Review 148 (1976)). [\/efn_note] Meanwhile, since the \u201cathlete\u2019s mental state is limited,\u201d 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 \u201cthe athlete consented to all acts associated with the game,\u201d and this may be erroneous.[efn_note]Id.<\/em> at 170. [\/efn_note]\n\n\n\n

ii. Rules of the Game Test<\/p>\n\n\n\n

A prosecutor can avoid the consent defense by \u201cbasing his[\/her] cause of action on the defendant\u2019s violation of a safety rule.\u201d[efn_note]WALTER T. CHAMPION, JR., SPORTS LAW IN A NUTSHELL 202 (5th<\/sup> ed.2017).[\/efn_note] This test consists of analyzing the setting<\/em> \u2014as in the rules and manner in which the game is usually played\u2014 to determine if the victim\u2019s participation in the sporting event constitutes a consent to bodily contact<\/em>.[efn_note]Horrow,<\/em> 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.<\/em> [\/efn_note] Every sport has a rulebook, the Official Rules of Professional Football<\/em> clearly state \u2014among other things\u2014 that \u201c[t]here shall be no unsportsmanlike conduct. This applies to any act which is contrary to the generally understood principles of sportsmanship.\u201d[efn_note]Official Rules of Professional Football, Rule 12 \u00a7 3 art. 1 (2017), https:\/\/operations.nfl.com\/the-rules\/2017-nfl-rulebook\/#pdf-download. [\/efn_note]\n\n\n\n

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 \u2014by courts and commentators\u2014 that these rules of the game should be the absolute \u201cstandard of conduct to which . . . player[s]consent.\u201d[efn_note]Horrow, supra<\/em> note 35, at 172. [\/efn_note] Moreover, Horrow cites an article from as far back as the 19th century that broaches the topic where \u201ceach 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.\u201d[efn_note]Id.<\/em> (citing<\/em> Beale, Consent in the Criminal Law<\/em>, 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. <\/em>at 174. See, e.g<\/em>., 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<\/em> note 35,at 175. [\/efn_note] For example, commentators have stated that during contact games (i.e. football) there is a clear consent to \u201cmoderate force\u201d, 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.<\/em> [\/efn_note] It is up to the jury to determine if a conduct was careless and in disregard to the safety of others<\/em>, 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. <\/em>at 176. [\/efn_note]\n\n\n\n

iii. Foreseeability Test <\/p>\n\n\n\n

This approach analyses the reasonableness<\/em> and seriousness<\/em> 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. <\/em>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\u2019s real intent is to cause harm, and by intentionally hitting a batter the pitcher could be criminally liable.[efn_note]Id. <\/em>at 183. (citing <\/em>Michigan Law Review, Consent in Criminal Law: Violence in Sports, 75 <\/em>MICH. L. REV. 148, 175 (1976)). [\/efn_note]\n\n\n\n

iv. Effectiveness of the Consent <\/p>\n\n\n\n

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 \u201cis powerless to waive the interest\u201d of the given consent, however, the state \u2014who brings the criminal action to the courts\u2014 may have an interest of safe and healthy citizens. This means that while the victim can waive their interest, they cannot waive the state\u2019s.[efn_note]Id.<\/em> [\/efn_note] Therefore, \u201c[t]he victim can consent and thereby satisfy the state\u2019s interest in protecting individuals from unwanted intrusions. [Their] consent, however, cannot satisfy any other interests of the state.\u201d[efn_note]Id. <\/em>at 184, FN 723. [\/efn_note] Thus, in a sporting event, where an excessive use of force is applied, this defense may not<\/em> be effective. The consent defense will be<\/em> effective when it destroys the punishable action of the person accused, therefore, satisfying the state\u2019s interest.[efn_note]Id.<\/em> [\/efn_note]\n\n\n\n

B. Self-Defense<\/em><\/p>\n\n\n\n

i. Legal Basis<\/p>\n\n\n\n

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.<\/em> [\/efn_note] Puerto Rico Penal Code<\/em> states that a person may not be prosecuted if the illegal act was to defend his\/her \u201cperson, home, property, or the rights of others\u201d only when it was \u201creasonably believed that there was an imminent threat.\u201d[efn_note]COD. PEN. PR. art. 25, 33 LPRA \u00a7 5038 (2010 & Supl. 2018) (translation provided). [\/efn_note] This penal code also emphasizes that \u201cno more damage than necessary can be inflicted to repel or prevent the damage.\u201d[efn_note]Id.<\/em> (translation by the author). [\/efn_note] In Puerto Rico the requirements to invoke this defense are the following: \u201creasonable 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.\u201d[efn_note]Reyes Salcedo v. Polic\u00eda de P.R., 143 DPR. 85, (1997) (translation provided). [\/efn_note] Dora Nevares explains that imminent threat<\/em> in this defense means \u201c[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.\u201d[efn_note]DORA NEVARES-MU\u00d1IZ, 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 \u201cresort to the law.\u201d[efn_note]WAYNE R. LAFAVE, CRIMINAL LAW 710 (2017). [\/efn_note]\n\n\n\n

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.<\/em> at 713. [\/efn_note] The key factor in self-defense is that the person must reasonably believe in \u201cthe necessity of using force to prevent [physical]harm.\u201d[efn_note]Id. <\/em>at 715. [\/efn_note] LaFave adds that it must not be an \u201chonest belief\u201d, but that the defendant actually believed that the only way to prevent the harm was to use force.[efn_note]Id.<\/em> at 715-17. [\/efn_note] The Model Penal Code<\/em> supports this by stating \u201cthe 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.\u201d[efn_note]MODEL PENALCODE \u00a7 3.04(1) (2017). [\/efn_note] Like in the Puerto Rico Penal Code<\/em>, LaFave acknowledges case law and legislations supporting \u2014and explicitly stating\u2014 that self-defense requires the defendant to believe that the harm is imminent.[efn_note]LAFAVE supra<\/em> note 70, at 718. [\/efn_note]\n\n\n\n

ii. Applied to Sports<\/p>\n\n\n\n

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<\/em> note 13, at 166. [\/efn_note] For this defense to be successful, \u201cthe defendant must show that he was not the aggressor.\u201d[efn_note]CHAMPION, JR., supra <\/em>note 49, at 361 [\/efn_note] This will make it difficult to use in sports violence cases since \u201cthe athlete will often fail to qualify as a non-aggressor.\u201d[efn_note]Id. <\/em> [\/efn_note] Due to its limitations, Horrow states that this defense \u201ccannot be relied upon by the defendant.\u201d[efn_note]HORROW, supra<\/em> 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 \u201cvindictive rather than preventive,\u201d then self-defense is not applicable.[efn_note]Id. <\/em>at 204-05. [\/efn_note] Also, since this defense requires zero<\/em> provocation from the defendant, then the burden of proof falls on the defense attorney, for they have to prove that the defendant \u201cwas about to be placed in immediate. . . bodily harm,\u201d therefore, their action was reasonable enough to prevent harm.[efn_note]Id. <\/em>at 205. [\/efn_note] Finally, if an athlete at any moment<\/em> 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<\/em> to the opponent rather than faced another direction.[efn_note]Id. <\/em>at 204-05. Also<\/em> see <\/em>Yates, supra<\/em> note 13, at 166. [\/efn_note]\n\n\n\n

Although this is a defense with many limitations, Canadian courts were able to employ it in Regina v. Maki<\/em> and Regina v. Green<\/em>. Horrow points towards the trial court\u2019s ruling in Green<\/em> where \u201cthe 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.\u201d[efn_note]HORROW, supra<\/em> note 35, at 204. [\/efn_note]\n\n\n\n

C. Involuntary Reflex<\/em><\/p>\n\n\n\n

i. Legal Basis<\/p>\n\n\n\n

The Puerto Rico Penal Code does not recognize this as a defense. However, it does follow the Model Penal Code, where it states that \u201c[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.\u201d [efn_note]MODEL PENAL CODE \u00a7 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  \u00a7 5031 (2010 & Supl. 2018). [\/efn_note] Basically, an involuntary act excuses the athlete for an offense when \u201cthe conduct [of the athlete]is not a product of the [athlete\u2019s] effort or determination.\u201d[efn_note]PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 260 (1984). [\/efn_note]\n\n\n\n

ii. Applied to Sports<\/p>\n\n\n\n

In the past, this has been a successful defense for athletes prosecuted for violent acts. The reason for this is: (1) \u201cintent is a difficult element to prove in sports violence cases even without the \u2018reflex\u2019 argument as a complicating factor\u201d; (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 \u201cconducive to a player \u2018losing control\u2019.\u201d[efn_note]HORROW, supra<\/em> note 35, at 201-02. [\/efn_note] In State v. Forbes<\/em>, it was argued that violence in sports is present in an athlete\u2019s life since the beginning of his\/her sport career.[efn_note]Id.<\/em> at 201. [\/efn_note] Courts are calling these assaults as instinctive<\/em>, proving that there was no intent to commit an assault.[efn_note]Yates, supra<\/em> 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. <\/p>\n\n\n\n

In a Canadian case, Regina v. Leyte<\/em>, the court held that in order to declare an instinctive action as an assault, the burden of proof must show that the assaulting player\u2019s reaction was irrational under specific circumstances, and not during playing time.[efn_note]HORROW, supra<\/em> note 35, at 203 (citing<\/em> 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 \u201cheat of the game has always been a kind of moral defense in sports to excuse bad manners and irrational acts\u201d.[efn_note]Id. <\/em>at 203-04 (citing<\/em> 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.<\/p>\n\n\n\n

D. Provocation<\/em><\/p>\n\n\n\n

i. Legal Basis<\/p>\n\n\n\n

The defendant must have been provoked sufficiently enough that it \u201cwould cause a normal person to lose self-control.\u201d[efn_note]ROBINSON, supra<\/em> note 86, at 484. [\/efn_note] For this to be used as a defense, the defendant must have acted \u201cin the heat of the passion\u201d, meaning, \u201cthe 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 \u2018cooling off period\u2019 for the reasonable person.\u201d[efn_note]LOEWY, supra note 64, at 36 (2009).[\/efn_note] Some states have categories under this defense known as \u201clegally sufficient\u201d, which include: \u201cadultery, fear, battery, assault . . . .\u201d However, these categories do not guarantee that a jury will rule in favor of the defendant.[efn_note]Id.<\/em> [\/efn_note] Most states hold that \u201cmere words\u201d, no matter how harsh<\/em>, are not  adequate for a provocation defense.[efn_note]Id. <\/em>at 36-37. [\/efn_note]\n\n\n\n

ii. Applied to Sports<\/em><\/p>\n\n\n\n

This defense is rarely used in sports, mainly because \u201cmany jurisdictions do not recognize the defense.\u201d[efn_note]HORROW, supra<\/em> note 35, at 200. [\/efn_note] Moreover, it requires \u201cthat the defendant [be]\u2018provoked into retaliation.\u2019\u201d[efn_note]Id. <\/em> [\/efn_note] In a traditional Canadian case, Agar v. Canning<\/em>, the Canadian court held that a \u201cretaliatory 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. . . .\u201d[efn_note]Id.<\/em> (citing<\/em> Agar v. Canning, [1965] 54 W.W.R. 302 (Man. Q.B.)). [\/efn_note]\n\n\n\n

E. CTE<\/em><\/p>\n\n\n\n

i. What is CTE?<\/p>\n\n\n\n

According to the Concussion Legacy Foundation, \u201cChronic Traumatic Encephalopathy (CTE) is a degenerative brain disease found in [people]with a history of repetitive brain trauma.\u201d[efn_note]What is CTE?<\/em>, 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 \u201cmost people diagnosed with CTE suffered hundreds or thousands of head impacts over the course of many years.\u201d[efn_note]Id<\/em>. [\/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<\/em>. [\/efn_note] This is true, because repeated hits to the head \u201ctrigger[]progressive degeneration of the brain tissue.\u201d[efn_note]Frequently Asked Questions About CTE<\/em>, 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 \u2014in mood and behavior\u2014from the head collisions start showing up much later.[efn_note]CONCUSSION LEGACY FOUNDATION,supra<\/em> note 99. [\/efn_note] Symptoms range from \u201cproblems with judgment, reasoning, problem solving, impulse control, [depression, paranoia], and aggression.\u201d[efn_note]BOSTON UNIVERSITY RESEARCH CTE CENTER, supra<\/em> 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<\/em> note 99. [\/efn_note] Even with all the research that has been done, \u201cCTE can only be diagnosed after death through brain tissue analysis.\u201d[efn_note]Id<\/em>. [\/efn_note]\n\n\n\n

ii. Impact in Sports<\/p>\n\n\n\n

CTE is usually found in contact sport athletes because of the commitment to constant \u2014and purposeful\u2014 hits to the head.[efn_note]Id.<\/em> [\/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.<\/em> [\/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 \u201c[a]football player is more likely to be violent than someone who didn\u2019t play, because of the brain damage. It doesn\u2019t mean every football player will be violent, but there\u2019s an increased risk.\u201d[efn_note]John McDermott, The Connection Between Concussions, CTE and Acts of Violence<\/em>, MEL MAGAZINE (July 12, 2017) https:\/\/melmagazine.com\/the-connection-between-concussions-cte-and-acts-of-violence-65330058f80.[\/efn_note]\n\n\n\n

\"\"
Source: Boston University Center for the Study of Chronic Traumatic Encephalopathy <\/em><\/figcaption><\/figure><\/div>\n\n\n\n

iii. Developing a Criminal Defense<\/p>\n\n\n\n

Even though there probably won\u2019t be aggressive or excessive plays caused directly by CTE \u2014because the symptoms appear many years after the repetitive hits to the head\u2014 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. <\/p>\n\n\n\n

It would be irresponsible to believe that CTE is not a possible \u2014if not the primary\u2014 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 \u2014impulse control, unintended aggression, and confusion\u2014 there was no specific intent; and to try to prove that, depending on the defendant\u2019s mental condition, he may be deemed incompetent to stand trial. These reasons should be strong enough \u2014along with proof that the athlete does in fact suffer from CTE\u2014 to present gaps in the reasonable doubt standard required for a conviction.<\/p>\n\n\n\n

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 \u201cCTE is a specific disease with credible diagnostic tools that will only get better with time.\u201d[efn_note]Doree Lewak, Athletes charged with heinous crimes may try the \u2018CTE defense\u2019<\/em>, 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, \u201c[w]hen people claim they\u2019re insane, it\u2019s hard to establish. This, [CTE defense] is going to boil down to science, which is developing.\u201d[efn_note]Id<\/em>. [\/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.<\/p>\n\n\n\n

iv. Notable Cases<\/p>\n\n\n\n

The following cases bear relevance to CTE and its use as a defense. Particularly, how taking CTE into account might have affected the jury\u2019s verdict.<\/p>\n\n\n\n

a. Aaron Hernandez<\/p>\n\n\n\n

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 \u201cmood swings, violent tendencies and memory loss.\u201d[efn_note]J. Amy Dillard and Lisa A. Tucker, Is C.T.E. a Defense for Murder?<\/em>, 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\u2019s CTE Research Center, where, according to his lawyers, they found that the disease was the \u201cworst case doctors had seen in someone so young.\u201d[efn_note]Id.<\/em>[\/efn_note] CTE\u2019s statistics and behavioral manifestations could have been a game changer during the jury\u2019s 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: <\/p>\n\n\n

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<\/em>. [\/efn_note]\n\n\n

<\/p>\n\n\n\n

With this in mind, Dillard and Tucker suggest that, although Hernandez\u2019s CTE diagnosis confirmation was postmortem, there is enough \u201csubstantial evidence\u201d to prove that the conviction of first-degree murder was wrong concluding that: \u201cit is likely that a lifetime of playing football \u2014not Mr. Hernandez\u2019s will\u2014 was to blame.\u201d[efn_note]Id<\/em>. [\/efn_note]\n\n\n\n

b. O.J. Simpson<\/p>\n\n\n\n

It has been said that O.J. Simpson, another notable professional football player, who was charged with a double murder \u2014one of them his ex-wife\u2014 but found not guilty, was also influenced by this disease. This comes from a belief Dr. Omalu has regarding the reason for \u201cSimpson\u2019s behavior and run-ins with the law.\u201d[efn_note]Bruce Y. Lee, Could Concussions Become A Legal Defense?<\/em>, 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 \u201clost a wrongful death civil suit\u201d brought by the victims\u2019 families, and was ordered to pay nearly thirty-four million dollars in damages.\u201d[efn_note]ESPN.com news services, Dr. Bennet Omalu ‘would bet my medical license’ that O.J. Simpson has CTE<\/em>, <\/strong>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 \u201cfound guilty of [armed]robbery and kidnapping and was sentenced to up to thirty-three years in prison.\u201d[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<\/em>.; also see<\/em> Jessica Rousey, Can We Blame CTE For O.J. Simpson’s Criminal Past?<\/em>, 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 \u201che sustained \u2018numerous blows to [his]head and\/or landed on [his]head violently\u2019\u201d. He also added that, during many of the games he played he was \u201cknocked out of games\u201d (taken out of the game) because of the constant blows to the head, and that in some occasions he \u201c\u2018continued playing despite hard blows to [his]head\u2019\u201d. Johnny Dodd, Does O.J. Simpson Have CTE? Famed Concussion Forensic Pathologist Dr. Bennet Omalu: ‘I Would Bet My Medical License On It’<\/em>, People (January 27, 2016), https:\/\/people.com\/crime\/dr-bennet-omalu-thinks-o-j-simpson-suffers-from-cte\/; ESPN.com news services, supra<\/em> note 117; Rousey, supra<\/em> note 118. [\/efn_note]\n\n\n\n

Throughout Simpson\u2019s 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 \u201csustained thousands of blows to the head\u201d[efn_note]Rousey, supra<\/em> note 118. [\/efn_note], which in future years may be strong evidence of CTE.[efn_note]ESPN.com news services, supra<\/em> note 117. [\/efn_note] As he explains it, in the course of just one American football game\u00ad\u00ad\u00ad\u00ad\u2014even with head protection (helmets)\u2014 \u201cmany players suffer [from numerous]cranial impacts,\u201d and the effects of those impacts \u201caccumulate over time\u201d.[efn_note]Rousey, supra<\/em> note 118. [\/efn_note] There is an interesting observation in which Dr. Omalu pointed out the fact that \u201cSimpson’s head is rather large and [this might suggest]that larger heads could suffer greater impact\u201d[efn_note]Lee, supra<\/em> note 116. [\/efn_note] mainly because \u201cthe momentum<\/em> of [the]impact would be bigger.\u201d[efn_note]Dr. Omalu described this momentum as \u201cbasic physics.\u201d ESPN.com news services, supra<\/em> note 117 (quoting <\/em>Dr. Omalu in an interview for People\u2019s Magazine)(emphasis provided); see Dodd, supra <\/em>note 119, to read the article where People Magazine interviewed Dr. Omalu.[\/efn_note]\n\n\n\n

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 \u201c\u2018more likely than not\u2019 that Simpson is affected by CTE.\u201d[efn_note]Rousey, supra<\/em> note 118 (quoting <\/em>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 \u201c\u2018the name of someone [he]knows.\u2019\u201d[efn_note]Mike Rodak, O.J. Simpson: \u2018I have days I can\u2019t find words\u2019<\/em>, ESPN (March 16, 2018), https:\/\/www.espn.com\/nfl\/story\/_\/id\/22795470\/oj-simpson-says-worried-cte. [\/efn_note]\n\n\n\n

c. The movie \u201cConcussion\u201d[efn_note]Concussion (2015). [\/efn_note]\n\n\n\n

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\u2019s 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\u2019t 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\u2019s boss and mentor, puts it, Omalu was going up against an organization that \u201cowns a day of the week.\u201d 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

There is no doubt that contact sports \u2014and some non-contact\u2014 have a degree of violence.[efn_note]CHAMPION, JR., supra<\/em> note 49, at 351. [\/efn_note][1]<\/a> 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<\/em>. [\/efn_note][2]<\/a> 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\u2019 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 \u201c[t]he trial of a professional athlete would be a highly publicized media event\u201d.[efn_note]Id<\/em>. at 352. [\/efn_note][3]<\/a> At the same time, a trial like this one could alter or end an athlete\u2019s 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. <\/p>\n\n\n\n

While it is rare for a sport\u2019s violence case to reach the criminal court \u2014either in the United States or in Puerto Rico\u2014, 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 \u2014even though this is still far from being useful\u2014.<\/p>\n\n\n\n

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. <\/p>\n\n\n\n

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\u2019s 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.<\/p>\n\n\n\n

<\/p>\n\n\n\n

\n\t\t","protected":false},"excerpt":{"rendered":"

ARTICLE By: Gretchen M. Col\u00f3n 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<\/p>\n

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