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A new punchline, an old problem

August 8, 2018

Last weekend’s dreadful assault in an AFL game by Andrew Gaff on 18-year old Andrew Brayshaw, raises yet again, the question of ‘what was he (Gaff) thinking?’ We usually ask that question jokingly responding to a stupid play on the field, but to call Gaff’s action stupid, could be considered an insult to stupid people! This is the first in a two-part series of longer posts on the issue of sport violence and the courts.

 

Gaff’s brutal action was not unique. The interesting issue is whether or not the police and courts will become involved. At the time of writing, it seems not. As some commentators have observed, it is uncommon for on-field assaults to be followed up off-field. But it is not unknown and the courts are clear on their conclusions; and have been for a long time.

 

In 1977, the District Court in Hackbart v. Cincinnati Bengals, Inc noted "that the question of community interest in limiting the violence in professional football concerns not only the protection of the participants, but also the effects of such violence on those who observe it." And that "the NFL has substituted the morality of the battlefield for that of the playing field, and the restraints of civilization have been left on the sidelines."

 

The case involved an American football defensive back, Dale Hackbart, who was seriously injured in a game against the Cincinnati Bengals. In the ensuing and precedent-setting court case, the plaintiff (Hackbart), sustained a serious neck fracture. The offending player, Charles Clark (who rejoiced in the nickname ‘Boobie’) was found to have acted out of anger and frustration, but without a specific intent to injure. In court he explained his anger by the fact that his team was losing.

 

As the quote above shows, the court in the Hackbart case was clear about the violent nature of American football but considered that it was unreasonable to conclude that Clark had a duty of care for the safety of others. Subsequently, some legal authorities opined that the trial court erred in its ruling that the law governing assault should be put aside when the injury inflicted took place in a game.

 

The question we might all ask of Gaff is whether he understands (even vaguely) what is meant by, the "restraints of civilization". A second question is whether, coaches of collision sports have any responsibility to drive home the message that such actions are (a) unacceptable, (b) illegal, (c) brings the game and affected team into disrepute, (d) will likely lead to contract termination (e) will certainly lead to the player being dropped. And all this before tribunals, disciplinary authorities or the courts get involved.

 

Gaff’s action bears a similarity to the McSorley ice hockey case in 2000. McSorley (Boston Bruins) attacked his opposite number, Donald Brashear (Vancouver Canucks) from behind, striking Brashear violently on the head with his stick. Brashear collapsed and went into convulsions. McSorley was subsequently convicted and received an 18-month conditional discharge. The discharge was troubling, but the use of the courts is not and will happen more often.

 

A number of British football on field incidents have gone to court and the perpetrators convicted. Eric Cantona’s kick on Crystal Palace’s Matthew Simmons in 1995 the most well-known. Cantona received a two week prison sentence, later reduced on appeal to a community service order. A 2005 tackle by Sparta Rotterdam's Rachid Bouaouzan ended the career of Niels Kokmeijer of Go Ahead Eagles with multiple fractures to his right leg. Bouaouzan was convicted and received a six-month suspended sentence and 20 hours of community service.

 

Putting aside the issue of suspended or ‘soft’ sentences. Convictions are the rule rather than the exception. The community is less tolerant of such on-field acts and it seems likely that punishments will become more severe. In 2015, the Economist commented that “Playing sport is not licence for anarchy. Murder on the football pitch is still murder. But rather than passing clear laws, common-law countries have set the boundaries of the carve-out for sports via prosecutorial discretion and a few close-call cases. Those boundaries can shift with social norms.” (Economist, 15 January 2015)

 

How many coaches include addressing social norms in their day-to-day coaching? Let me be clear. I’m not talking about a discussion about right and wrong after the fact. I’m talking about what happens on the training field. Using teachable moments in practice to reinforce and ethical point. If coaches equivocate or send ambiguous messages on right and wrong actions on the field, athletes will rationalise their on-field decision-making, blind to the wider effects on the community.

 

Coming back to the Gaff assault, Monash University law lecturer Eric Windholz observed "We all engage in our activities according to the law of the state ‑ if this incident occurred in a different workplace ‑ we wouldn't really be having this conversation".

 

Gaff’s post game reaction? "I respect the Brayshaw boys so much and the way they go about it. I'm really disappointed. I own my actions, and it really hurts a lot.” ….. "The last 48 hours have probably been the toughest couple of days of my life ... the people that I've spoken to and who have seen me in that time know the world of pain I'm in and how much I'm suffering. I see myself as a caring, gentle and measured person and that's why it's disappointing so much more.” (AAP, 8 August)….  Really? Is he seriously expecting sympathy?

 

The American NFL has settled an estimated US$1 billion suit to address concussion issues in retired players. That is a clear signal from the courts about liability that all sport administrators should be concerned about.

 

The most common argument against the courts remedy is the consent doctrine. More about that in Part 2 of this Blog series.

 

If you haven’t seen the Gaff assault, take a look here.

 

 

 

 

 

 

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