When Does A Foul Become A Crime? It's Tricky

Tuesday one of the things going around on the internet was an account of a pickup basketball game in Virginia that ended when one man got so mad about a foul he called the actual police.

In this case, there is no available video, the cops didn’t think much of his claim and everybody’s life just went on. But it brought up an interesting question:

At what point does a foul become a crime?

This is a question that courts are increasingly being confronted with, and is of such complexity that three years ago The Economist took a stab at answering it.

It all comes down to two concepts:

1. Consent: By participating in a sport, an athlete is necessarily consenting to certain actions and risks common to the sport that might be considered criminal in other contexts. A boxer can’t see a judge about being punched, for example.
2. Public opinion: Governments ban lots of different consensual activities — dueling with pistols was an example The Economist used — and in the context of sports the legality or illegality of the action pretty much comes down to what the general public thinks about it. And that’s where things get tricky: “For the pastimes that states have decided to allow, it is often unclear exactly which types of contact athletes consent to,” The Economist wrote. “Courts have generally sought to distinguish violence intrinsic to a sport from behaviour outside the norm. But a game’s formal rules cannot legalise conduct that would otherwise be forbidden, and are often surprisingly unhelpful: much of what they explicitly punish (such as excessive tackling in soccer) is banned precisely because it occurs so often, and can thus be considered part of the sport.”

Hockey provides an especially difficult test case for these ideas because fighting, while technically against the rules, is expected and even encouraged by everyone involved. The public has decided that fights are part of the game — in other words, by playing hockey in the first place, players are consenting to being punched or hit with a stick, because everybody knows that’s what happens in hockey, and for the most part nobody has a problem with it.

For the most part. 

It is no big surprise that hockey is a sport where this stuff tends to bleed into the courtrooms. In 2004, Todd Bertuzzi pleaded guilty in Canada to assault causing bodily harm for what he did to Steve Moore during a game that same year.

Bertuzzi was ejected from the game and suspended, and Moore was taken out in a stretcher with a broken neck, a concussion, amnesia and all sorts of stuff. Bertuzzi apologized to Moore, saying he never meant to hurt him, and if he hadn’t, it’s hard to imagine authorities bringing charges against him. As it was, Bertuzzi was an instant villain, and after a four-month investiation the prosecution had a strong enough case that Bertuzzi took a plea bargain.

Four years earlier, Marty McSorley hit Donald Brashear in the head with his stick, knocking him out and sending him to the hospital with a Grade III concussion.

McSorley was suspended, found guilty of assault with a deadly weapon, and sentenced to 18 months probation.

Until then, the last time anything like that had happened in hockey was in 1988, when Dino Ciccarelli was convicted of assault for doing this:

Yet there have been occasions before and since, in other sports, where athletes have committed equally egregious acts that fell equally outside the bounds of their sport, yet were never charged.

Mike Tyson bit off a piece of Evander Holyfield’s ear in 1997.

And Kermit Washington nearly killed Rudy Tomjanovich with this punch in 1977.

Tyson’s ear bite was mostly just considered funny. And Washington was never charged, even though everyone in the arena was horrified by the sound of Tomjanovich’s skull fracturing, the national media went into full special report mode, and the public was so outraged, as Bill Simmons described in The Book of Basketball, police told Washington not to order room service on the road because they thought it might be poisoned.

So here you have an athlete throwing a punch clearly outside the bounds of what a basketball player is consenting to, a punch that almost kills a person, causes nationwide outrage and forces the NBA to change some of its rules, yet the powers that were in Los Angeles at the time didn’t consider it a criminal act worth prosecuting.

So the answer to the question in the headline is, it’s kinda hard to say, but you’d better trust it’s going to take a lot.