PINSTRIPES AND JAILHOUSE STRIPES: The Case Of "Athlete's Immunity"

During game two of the World Series, Mike Piazza connected with a Roger Clemens pitch, and Piazza's bat came apart in his hands. A shard of the bat flew toward the pitcher's mound, where Clemens caught it and then hurled it toward Piazza, who was running down the first base line. Fortunately, the fragment of bat missed Piazza.

It's a pretty safe bet that not one of the countless police officers working security at the game considered running onto the field and arresting Clemens. It's an equally safe bet that if Clemens had thrown a piece of a baseball bat at someone while walking down Lexington Avenue, he would have been arrested on a charge of assault (in criminal law, it's assault even if you miss) — or even the more serious charge of assault with a dangerous weapon. And if Clemens had been charged with assaulting Piazza, his conflicting explanations would have rung rather hollow at trial. But Clemens was never really in danger of having to trade his Yankee pinstripes for the jailhouse variety. After all, it happened during a game.

Without really thinking about it, we seem to have extended to athletes near-total immunity for the crimes they commit on the field, on the ice, on the court, and in the ring.

Much of the criminal code, boiled down to its essence, stands for this proposition: don't hit people. But you can't play football without hitting people. In George Will's words, "football combines the two worst features of modern American life: it's violence punctuated by committee meetings." The same is true, minus the meetings, for boxing and hockey, and even for less overtly violent contact sports, such as basketball. Even supposedly non-contact sports like baseball are implicated, as Mike Piazza can attest.

All of these sports involve physical contact that, off the field, would be criminal. If I run down the street and tackle the first person I see carrying a loaf of bread, I will not, at my assault trial, be allowed to argue that I was just "sacking" the victim. But Dolphins' defensive end Trace Armstrong, football's premier sackmeister, is never in danger of arrest for doing exactly that every Sunday during the season. He is immune, because he and the quarterback are playing football.

To an extent, this immunity is understandable. The Greeks demonstrated over two thousand years ago that a society can tolerate a certain level of sports-related violence and remain civilized. Several hundred years later, Imperial Rome was feeding Christians to the lions, a eternal symbol of the barbarism of the first-century A.D. western world. The historical lesson is that civilization and sports go together — up to a point.

Society's easy accommodation of sports depends on several factors. Consent is part of it: quarterbacks know they're going to be sacked, but they play anyway. But consent is not enough. Duelists might both consent to a duel, but they'll still be committing a crime in every state. Even states that permit prizefighting require a state-granted license, and without it, consent will not save the participants from prosecution.

Levels of violence are also important. Blood sports still exist elsewhere in the world; some eastern practitioners of some martial arts, such as Tai Chi, for example, still view death as an acceptable outcome for matches. But not in the U.S. We as a nation have decided that there are limits to the levels of violence we can tolerate, and the professional sports we allow conform to those limits.

Finally, sports have rules and governing bodies to control the violence. In the NBA, for example, there are ordinary fouls, which may result in free throws under certain circumstances (whether the fouled player was shooting, for example), and flagrant fouls, reserved for really nasty playing, which always result in free throws and may involve ejections and suspensions. Most sports have similar arrangements. And beyond the rules, there is the nearly boundless discretion of officials. Referees and umpires can eject players, and leagues can suspend them and impose forfeits and fines.

These are all good reasons for letting ballplayers play ball. And most athletes conduct themselves like law-abiding citizens on and off the field. Still, their privilege to be violent, even in a limited setting, is an extraordinary one: controlling the level of violence in society through the criminal law is one of the critical functions of the state.

The criminal law limits all of our actions, all of the time — whether or not we are athletes. So the starting point, when we think a player might have stepped over the line, must always be the rules of society, not the rules of the game. The privilege of on-field violence may be granted liberally, but it should be withdrawn just as easily.

Now, the law takes biting rather seriously, and it takes the type of disfigurement Tyson inflicted on Holyfield rather seriously, too. In Washington, D.C., for example, you'd face 20 years in prison for such an offense. Tyson's exposure was even greater, because he had been convicted of rape prior to his attack. Moreover, although biting is not completely unknown to boxing, it is an extraordinary event, one that no fighter can conceivably be said to consent to when he gets into the ring. Tyson was spared a prosecution solely because he was fighting for millions in a boxing ring rather than for pride in his neighborhood bar.

Indeed, athletes are often exempt even when they're not exactly playing the game. In 1997, basketball player Latrell Sprewell choked Golden State Warriors coach P.J. Carlesimo during practice because Sprewell didn't like how the coach was talking to him. In virtually every jurisdiction, words are an inadequate provocation for attack; Sprewell had no defense. Again, if Sprewell had done the same thing in a bar, he would have been arrested, and would have spent the night in a lock-up. But because he is a professional athlete, prosecution was never a serious possibility. Once again, the corroding message — that professional athletes, professional entertainers, and the rich and famous generally are allowed to play by different rules — was sent. Arresting Sprewell would have sent the opposite message: being a high-priced athlete is not a license for aggression.

Professional sports, speaking through their front offices, are unsuitable substitutes for criminal authorities. When Marty McSorley savagely attacked Donald Brashears, the NHL's chief legal officer condemned the decision to prosecute. Hockey's revenues have always depended to some extent on goons like McSorley, and the league's position demonstrates that those revenues come first. Boxing's willingness to tolerate the return of Tyson, who has no respect for any rules anywhere, similarly shows that boxing is incapable of policing itself.

There have, of course, been isolated instances of prosecutions. The McSorley case is the most recent, but there have been a smattering of hockey-related cases over the last twenty years. More typical, however, are the decisions not to prosecute made in the Tyson and Sprewell situations.

Recently, a Kansas prosecutor had to decide whether to charge a Wichita State University pitcher for throwing a ball at a batter who was simply standing in the on-deck circle, timing the pitcher's warm-up throws. The prosecutor released to the public her report, stating the basis for her decision not to prosecute. In it, she apparently stated that she did not think the pitcher was trying to hit the batter, which would be the best possible reason not to prosecute. But she also said that her research, which included reading Ted Williams' book on hitting, showed that baseball tolerates brush-back pitches, even of hitters in the on-deck circle.

Whether or not that's the right way to think about baseball, it's the wrong way to think about the case. If baseball tolerates throwing balls at players who are simply waiting their turn to bat, that's too bad for baseball. The pitcher wasn't playing a game; he was using baseball as a cover for pure aggression. That has nothing to do with sport, and society should not tolerate it, even if baseball does.