War, Peace & Hockey – A Look at Implied Consent in the NHL

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In the last 2 weeks of the NHL pre-season, there have been a couple of high-profile incidents that have raised talk in some circles about whether those actions warranted further, more serious societal punishments.

Those incidents are the reckless tomahawk chop by Zack Kassian on Sam Gagner, and the maniacal 5-iron swing by Phil Kessel on Sabres pugilist John Scott. Sam Gagner suffered a gruesome facial injury that many of you readers have likely already seen on the Twitter-sphere. For his actions, Kassian received a 5-game suspension. John Scott on the other hand luckily escaped unscathed. Kessel was rewarded with taking the rest of the pre-season off. But what about if that swing from Kessel had broken Scott’s leg – or even worse ended his career? What would be the punishment? Would Kessel possibly have been suspended longer, or worse, faced legal consequences for his actions? To answer this question we have to tackle the issue of implied consent – that is what exactly does a hockey player consent to when he steps on the ice.

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In the past 25 years or so, we can instantly recall the cases of Todd Bertuzzi chasing down Steve Moore, Marty McSorley slashing Donald Brashear over the head, and Dino Ciccarelli hitting Luke Richardson with his stick. These cases all went past the ‘NHL courts’ and into the public courts – some criminal and some civil. Dino Ciccarelli for his part received 1 day in jail and a $1,000 fine back in 1988. Marty McSorley was found guilty of assault with a weapon and received a sentence of 18 months’ probation. Todd Bertuzzi was charged with, and pleaded guilty to, assault causing bodily harm for which he received a conditional discharge requiring 80 hours of community service and 1 year of probation. There is also that other side issue of the $60 million lawsuit hanging over his head from the attack. In each of these incidents, there was a common theme resulting in the criminal action: that being that the very nature of the play exceeded that which can be reasonably expected on the playing field.

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In establishing assault there are 2 primary elements – the intention to cause the harm and the lack of consent to such harm. Of course, if consent exists this could be a valid defence in such a situation. In normal everyday life if I were to go up to my neighbor and punch him in the face I would be looking at the prospect of a shiny new cell. That’s because courts have found fighting to be unlawful, even if consent exists. But what about in hockey? There is a widespread misconception out there that when a player steps onto the ice he is consenting to whatever occurs on the ice. As with many things in life, this is true, but to a limit. Courts have established that there are forms of “assault” in sport that are inherently accepted as part of the game and will fall within the implied consent sphere. This can include body-checking in hockey, and yes, even fighting. But there are also forms of what we can call “extreme assault” that go beyond the ordinary norms of conduct in which no consent will be recognized.

How then do we determine what goes beyond the ordinary norm of conduct in a sport? This again comes back to intent and comparing it to the inherent danger of the act. Specifically, there is an established legal principle telling us that conduct that shows a deliberate purpose to inflict injury will be held to be outside the sphere of implied consent. In fact courts have even developed a set of criteria to consider. These include the:

– Nature of the game – Was it a competitive league? Beer-league? Rec-league? Contact?

– Nature of the act(s) and surrounding circumstances – Was the act common or uncommon? Did it occur away from the play or after the whistle? What degree of force was applied?

– Degree of risk—Was serious injury possible or probable?

– State of mind—Was there an intention to inflict injury? Was the act done in retaliation or to intimidate?

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It is likely then that a court considered these factors when deciding that the actions of Dino Ciccarelli, Marty McSorley and Todd Bertuzzi warranted criminal sanctions. It is just as telling that there have been so few incidents that have gone beyond the desk of Mike Murphy, Colin Campbell or now Brendan Shanahan. Courts are generally reluctant to step-in and are more than happy to let the leagues police themselves.

So yes Phil Kessel’s swing was highly questionable and could have caused serious injury. But it’s also debatable whether or not he was trying to intentionally inflict injury at John Scott. I don’t know about you, but if I had a 6’8’’, 270 lb. behemoth wanting to pummel me, I’d probably react in self-defence in a similar way. Same goes for Zack Kassian. While his stick swing was definitely reckless, it would be extremely hard to prove it was done in an intentional manner. As far as we can tell, he went in for a check and spun around with his stick in a reckless manner – but there is nothing (besides Oilers homer-ism) to lead us to believe that he intended to break Sam Gagner’s jaw. Perhaps he just needs to get some skating and balance lessons from one figure-skating prodigy Jeff Skinner.

As always your comments are welcomed.

For Hockeyland Canada,

RK, Esq.

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One response to “War, Peace & Hockey – A Look at Implied Consent in the NHL

  1. Eye opening to see the criteria needed to be met. All too often though action is only taken if injury occurs, not when it doesn’t occur but is probable. I would say a two hand slash multiple times by an NHL hockey player is probably going to cause injury. Phil took it too far with his return slashes, and was clearly acting out of anger and retaliation rather than self-defense. Three preseason games is no punishment at all, especially for a repeat two hand slash offender like Kessel.

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