On September 19, 2015, two California high schools, Acalanes High and Bellarmine College Preparatory School, squared off in a hard-fought junior varsity water polo tournament match in Walnut Creek. During the match, a 15-year-old sophomore Acalanes player allegedly used his leg or knee to intentionally strike a Bellarmine opponent in the face. The incident took place under water, neither player had the ball, and the referees called no foul. The opponent suffered a broken nose which required surgery. The bloody incident was caught on video, which has not yet been released to the public.
The incident was reported to police, and, earlier this month, after investigation local prosecutors filed felony assault and battery charges against the Acalanes player. Because the defendant is a minor, the case has been referred to the juvenile court.
Regardless of the outcome of the juvenile court proceedings, the water polo match provides opportunity to review the criminal law's role in responding to assaultive conduct and other violence that takes place during an athletic contest. In the pros and youth leagues alike, criminal charges should remain rare, lodged only for violence clearly outside the rules of the game. Controlled aggression is central to contact and collision sports, which depend on assaultive conduct which might be viewed as criminal if done away from the field.
Role of criminal law in sports
Four basic propositions determine the criminal law's role in competitive sports:
First, the criminal law applies on every acre of U.S. territory, including fields, arenas, and other athletic facilities. Neither professional players nor youth leaguers enjoy blanket immunity for conduct that takes place during games or practice sessions. Athletic facilities offer players no sanctuary from the criminal law.
Second, however, the criminal law applies differently in sports than in most other activities because athletes consent to assaults and other violence that are within the rules of the game. For example, if a person, without provocation, tackles someone on Main Street, the take-down would be a criminal assault subject to prosecution. But when a player tackles a ball carrier during a National Football League or high school football game, the tackle does not elicit a criminal law response because players consent to assaults that are within the rules. No tackling, no football.
Third, players in games also consent to assaults and other violence that are on the periphery of the rules. What if one football player draws a penalty for clipping another player, who suffers an injury on the play? Criminal prosecution remains inappropriate because players understand that clipping and injuries are part of football. The penalty does not change the equation because penalties are also part of the game.
Fourth, criminal prosecution is appropriate only when an offending player's assault during or immediately after a game is clearly outside the rules, and thus clearly outside any reasonable scope of the opponent's consent. The criminal law may treat the player as if he or she acted away from the game itself (that is, on Main Street).
Such an over-the-edge incident happened in 2000, when Boston Bruins "enforcer" Marty McSorley viciously clubbed an opposing player in a National Hockey League game. With less than three seconds remaining, and the Bruins losing, 5-2, McSorley skated up from behind, reached back, and swung his stick like a baseball bat at the opponent's skull. The blind-sided opponent fell back from the two-handed blow, hit his head on the ice, suffered a concussion, and was carried off unconscious on a stretcher, with his neck in a brace and blood flowing from his nose. A Canadian court properly convicted McSorley of assault, and he was sentenced to probation.
Crossing the line?
In the California JV water polo match, then, the propriety of juvenile court adjudication does not depend on the fact that contact took place between the Acalanes player and his Bellarmine opponent. Nor does propriety depend on the fact that the opponent suffered a broken nose requiring surgery. Water polo players and their families know that theirs is a rough sport, and they consent to the prospect of contact and perhaps injury.
The equation does not change because the referees called no foul for the altercation in front of the Bellarmine goal. Referees do not see everything, and they sometimes miss calls. Even a foul would not necessarily support criminal prosecution because players consent to contact on the periphery of the rules, regardless of whether the referees do call a foul.
The determinative question is whether, like the McSorley assault, the Acalanes-Bellarmine altercation was so clearly outside the rules of the game that it fell outside the reasonable range of consent. Did the Acalanes player specifically target the opponent? Was the incident (like the McSorley assault) clearly away from the play? Was the incident, caught on video, subject to a gross foul if the referees had seen it? Or did the refs see the incident and deem it not out of the ordinary? Answers to questions such as these will depend on line-drawing following examination of the game video and any statements that police or prosecutors elicit in the juvenile court from the referees and other eyewitnesses.
Proactive versus reactive
Regardless of the eventual outcome in California, criminal prosecutions arising from conduct during games are rare in the professional ranks and youth leagues, and such prosecutions should, in my view, remain rare. Leagues and teams should police fouls inherent in the give-and-take of the game. (The Alcalanes player was reportedly suspended briefly from school and from the JV water polo team.)
A player should not fear arrest for a hard hit in a contact or collision sport merely because the referee whistles a penalty and the opponent is injured. Aggressiveness is part of athletics, and preoccupation with the prospect of arrest and court intrusion would compromise the essence of these sports by leaving players tentative and uncertain about the potential consequences of their play. (which might actually increase the risk of injury)
Criminal prosecution should be considered only when a player clearly crosses a rational line between legitimate athletic performance and criminal conduct. Prosecutors engaged in line-drawing should tread particularly carefully in youth competition. The pros are millionaire entertainers played for multimillion dollar, and sometimes billion dollar enterprises, their teams and leagues. Youth leaguers are children playing for their own growth, and without financial reward. Society loses whenever a youth is hauled into juvenile court, and most adolescent athletes simply do not belong there. Only the strongest evidence of intentional assault outside the rules of the game should land a youth leaguer in the juvenile court for contact or collision that happened during a game.
Another factor also weighs heavily against invoking the criminal law in youth league competition except in extreme cases. The prospect of rare prosecution provides an inadequate substitute for carefully conceived prevention initiatives grounded in close training and supervision which strives to make athletic competition as safe as possible. Youth sports governing bodies, leagues, and teams should be proactive in working to prevent injuries from occurring. The problem with the criminal law is that it is reactive, and can only come into play after injury occurs. Regardless of the ultimate outcome from the California water polo prosecution, prevention comes first because sportsmanlike teens who are trained and supervised by responsible adults do not commit serious unprovoked assaults in which an opponent's nose is broken.
Doug Abrams is a longtime professor at the University of Missouri, nationally recognized youth sports expert, and former youth hockey coach. Prof. Abrams is a prolific author and lecturer on youth sports, including sportsmanship, character development, and community sports programs.
Jill Tucker and Demian Bulwa, "Bay Area Athlete, 15, Charged With Felony Over Broken Nose," SFGate.com (December 18, 2015); http://www.sfgate.com/crime/article/Bay-Area-athlete-15-charged-with-fel... Douglas E. Abrams, Pro Athletes Create a Culture of Violence in Sports, St. Louis Post-Dispatch, Feb. 27, 2000, p. B3; Douglas E. Abrams, "Muggings On Court Demand Action," Tallahassee (Fla.) Democrat, Dec. 23, 2006, p. 5E.
Posted January 6, 2015