Experts: Bertuzzi civil case unlikely
Canadian Press
3/14/2004
VANCOUVER (CP) - Whatever other reverberations there may be from the cheap shot heard round the world, it's unlikely they'll echo in civil court.
Legal experts say that while Colorado Avalanche forward Steve Moore could sue Vancouver Canucks' star Todd Bertuzzi for last Monday's neck-breaking attack, chances are he won't.
The culture of professional sport, especially hockey, keeps players from suing each other, their teams or leagues, says Prof. Hilary Findlay of Brock University's Centre for Sport and the Law.
``While they're active players there's a real disincentive to do that,'' Findlay said from St. Catharines, Ont. ``They get labelled.''
Moore was transferred late Saturday night from a Vancouver hospital to one in Colorado, almost a week after Bertuzzi punched him from behind, then fell on the unconscious Moore as he slid face-first down the ice.
Besides two fractured cervical vertebrae, Moore suffered deep facial cuts, a concussion and memory loss. He's out for the rest of the NHL season, at least.
Bertuzzi is sitting out too, thanks to a suspension that includes the playoffs, and he'll have to apply to the league for reinstatement next season. The financial cost to Bertuzzi is more than $500,000.
He also faces a criminal investigation by Vancouver police on a possible assault charge.
Observers have compared it to the incident in 2000 that earned Boston Bruins tough guy Marty McSorley a conditional sentence for assault for cold-cocking Vancouver's Donald Brashear with his stick.
Canadian, U.S. and British criminal courts have a long history of penalizing maliciously rough play, says Ron Watson, an expert in sports law at the University of Western Ontario.
One of the earliest cases saw a British soccer player convicted of manslaughter in 1878 for kneeing an opponent in the chest, bursting his intestines.
``No rules or practice of any game whatever can make that lawful which is unlawful by the law of the land,'' the judge in that case found.
``It was clear that some things go beyond the bounds of what society will accept,'' said Watson, professor in the university's kinesiology department.
But a civil suit? Moore's agent says the family of the Windsor, Ont., rookie hasn't even thought about it so far.
``They're legitimately only interested in his health at this time,'' Larry Kelly said from Ottawa.
``Maybe they'll sit down and consider it but there's been nothing of that nature discussed.''
There's nothing says Moore can't sue. But if history's any guide, he won't.
``Most people understand when they're participating in the game that injuries occur and that by stepping on the ice they're almost agreeing to accept any risk of injury, not just necessarily within the rules but within the context of the game,'' Bill Daly, the NHL's chief legal officer, said from New York.
``So you very, very rarely see any civil actions brought as a result of things that transpire on the ice.''
Not that Moore should have any financial worries. The league's collective agreement with the NHL Players Association guarantees a player's entire salary in the event of injury.
It also provides for disability insurance if a player is forced to retire and Daly said some players opt to top up that coverage too.
But if Moore's injury is career-ending, he would have to agree not to hold the NHL liable in order to get his financial settlement under a clause in the players' contract, said Watson, a former hockey player and coach.
``If he signs off on that, then he can't sue,'' Watson said from London, Ont.
``But if he doesn't he still has the option of taking the National Hockey League and whomever else he might want to take to civil court to recover damages.''
Cases that have gone to court successfully haven't involved on-ice incidents.
In a case that went to the Supreme Court of Canada, the Canucks' Mike Robitaille won $335,000 from the team for a 1977 spinal injury he said was aggravated when he was forced to continue playing.
And Philadelphia Flyers' defenceman Dave Babych won $1.37 million US from the team's doctor in 2002 over treatment of a foot injury he said prematurely ended his career.
But the judge said the Flyers themselves, through team owner Comcast-Spectator, were not liable.
Pro players who do sue for questionable hits aren't likely to get much sympathy, at least in U.S. courts, said Watson.
A Missouri appeals court tossed out a $175,000 US judgment against the St. Louis Blues after a player on one of its farm teams nailed the opposing goalie after the whistle, knocking him out.
Rough play, even outside the rules, is part of the game, the court said.
``What might be an assault on the street is not a typical assault in the context of a game you're agreeing to participate in,'' said the NHL's Daly.
It goes to the ``ethos'' of the players who voluntarily participate in a tough contact sport, he said.
``So unless it's so far out of the realm of expectation, it's not something that even occurs to these players as being a way to sue for bodily injury.''
Dave (Tiger) Williams put it bluntly in 1988 after Minnesota North Stars' Dino Ciccarelli was sentenced to a day in jail and fined $1,000 for clubbing Toronto's Luke Richardson with his stick.
``You consent to assault when you lace up your skates,'' said Williams, who skated from an assault charge himself in 1977. ``It's what hockey is all about.''
Williams was partly right, Findlay said.
``But what you don't consent to is someone coming up behind you and grabbing you and punching you in the face like that when you're skating away,'' she said, referring to Bertuzzi's attack.
On the criminal side, Daly said he hopes the heavy penalty the league meted out to Bertuzzi will factor into the decision whether to charge him.
``We're very well aware that in a matter of prosecutorial discretion like exists here,'' he said. ``One of the factors that they'll look at is whether the private organization is policing itself in an effective way.''
But Watson said the courts, acting on behalf of society, have the right to weigh in.
``The debate might still go on, but in terms of the law the debate is over whether or not the courts should intercede,'' he said.
Cheers,
Aquaman