By Ben Stevens
Rumbling along in the background to the recent Lions tour of Australia was an interesting disciplinary issue concerning an alleged stamp by Australian captain James Horwill on Alun-Wyn Jones. The incident, which went unnoticed at the time, was cited, leading to a disciplinary hearing at which Horwill was cleared, followed by an unprecedented appeal by the International Rugby Board, which was also dismissed.
Rugby, of course, is no stranger to incidents which push and often exceed the boundaries of what is acceptable in sport in terms of physicality. Take, for instance, the savage beating Ronan O’Gara received at the hands of Duncan McRae when playing in the 2001 Lions tour, also in Australia, against the New South Wales Waratahs. Or Lewis Moody and Alesana Tuilagi, club mates at Leicester Tigers, exchanging blows when playing for their national teams. More recently we saw Alesana’s younger brother, Manu, using national team mate Chris Ashton for target practice in an East Midlands derby between Leicester and Northampton Saints.
Although these examples are at the extreme end of the spectrum in terms of sporting violence and rightly attracted the ire of the authorities, they’re not altogether out of the ordinary. In fact, violence of the sort that would attract the attention of the police outside of a sporting context is not just part of some sports, but a respected part of the overarching culture. Ice Hockey is perhaps the best example, where the most aggressive players, whose main role is to intimidate opponents, are prized as enforcers (or “goons”). Such is the frequency with which ice hockey referees and commentators have to deal with mid-game tear-ups, they could quite easily begin a second career in boxing if work on the ice dried up.
The question for athletes, governing bodies and lawyers alike is at what point does the violence outstrip the realms of acceptability, and become an act which should attract further off-field punishment, or, in more serious cases, civil or criminal liability?
In answering this question, the starting point is that within any contact sport, physical contact is, obviously, a given. The rules provide for it and players who take part are deemed to consent to what would otherwise be assaults because of that. Acts which are outside of the rules, such that they attract a caution, sin-binning, sending off, etc. still, generally speaking, fall within that consent.
The next step is to consider acts which, although not expressly provided for in the rules, are considered to be within the culture and therefore permissible. Fighting in sports such as ice hockey, rugby and Aussie rules have historically been tolerated as a part of the sport, even though it is not a necessary part of playing the game. So throwing a punch or two during an Australian Football League match is not within the rules, but that does not necessarily mean that it will fall foul of any either as, for many people within the game, a minor ruckus is no great cause for concern.
The real difficulty comes with acts which are outside of both the rules and spirit of the game. This is because they can give rise to a range of consequences. Most obviously, a sport’s governing body may step in and add to a punishment already meted out by a referee. See, for example, Ben Thatcher who was initially booked for his challenge on Pedro Mendes, which resulted in the latter suffering a seizure on his way to hospital, before the FA stepped in and increased this to an eight game ban with a further 15 match ban suspended for two years. Any decision such as this will then be subject to any rights of appeal which the relevant governing body has set out.
It can be difficult enough to navigate the various rules and regulations laid down by each governing body, but things can get even murkier. As alluded to at the outset, many of the acts discussed here would attract the attention of the police outside of a sporting context. The question is, therefore, which acts, violent enough to attract the attention of governing bodies, should also attract the attention of the police? Ben Thatcher’s challenge, leading as he was with his elbow, looked calculated to cause harm, and Greater Manchester Police did indeed investigate the incident. Similarly, in 2008 when Iain Hume’s skull was fractured after a run in with the sharp end of Chris Morgan’s elbow during a Barnsley v Sheffield United match, Barnsley released a statement showing their intention to pursue legal avenues, stating that the FA’s “decision to disconnect a violent act from its consequences runs contrary to the principles of civil and criminal law”.
Indeed, as Barnsley’s statement makes clear, civil liability is a very relevant consideration. Iain Hume did not play competitive football for nine months following his injury. More famously, Roy Keane’s high challenge on Alf-Inge Haaland in 2001 during a Manchester derby can be linked to the end of the latter’s career. Haaland claims that he never fully recovered from the ligament damage which Keane’s challenge caused and it is reported that Manchester City, the club for which Haaland was playing at the time, terminated their contract with him based on indications that he would be unable to play first team football again. In both cases there is clearly an arguable case for an action based on acts which have caused personal injury and pecuniary loss.
It may seem surprising that a single act committed in the heat of the moment, can potentially give rise to three separate sets of proceedings. What’s more surprising, perhaps, is that we do not see this more often given the frequency with which fists and boots fly throughout the sporting calendar. The fact that we do not may be due to the difficulty of defining those acts which fall outside of the culture of a sport and are, therefore, of a kind which should attract further action. For every case such as Thatcher’s elbow or Keane’s high foot, there are a thousand which are far less clear cut. What is certain, however, is that when sportsmen do slip beyond the realms of acceptability, there is a complex legal and regulatory web waiting to catch them.
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Ben studied law at the University of Oxford and has subsequently gained experience of commercial, real estate and family law as a paralegal. He is an avid sports fan, who spends much of his time following the ever anti-climactic fortunes of Leicester City FC. He enjoys combining these interests by writing on law, sport and the points at which they meet.
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