Prosecuting Professional Sports:
When a Hockey Player Breaks His Opponent's Neck, Is It Battery?

By MICHAEL LYNCH

Wednesday, Mar. 24, 2004

Earlier this month, during a professional hockey game in Vancouver, a young man was intentionally attacked from behind, leaving him with a broken neck.

Todd Bertuzzi, the assailant, calmly skated behind his victim, Steve Moore, and ferociously unleashed a punch into the side of Moore's head. Moore's body immediately went limp.

Bertuzzi then proceeded to hurl Moore's face into the ice. This driving force shattered two vertebrae in Moore's neck. Moore never saw Bertuzzi coming.

Because this strike occurred during the game, there has been controversy about whether Bertuzzi should face criminal charges. In this column, I will argue that he should.

The Assailant's Act, In Other Circumstances, Plainly Would Be A Felony

Criminal battery is defined as the use of force by one person against another, resulting in harmful contact.

Bertuzzi's acts clearly fall within the bounds of battery -- for he used force not once but twice. And the contact was extremely harmful; it broke Moore's neck.

In most jurisdictions, battery accompanied by the intent to cause serious physical harm constitutes a felony. Did Bertuzzi also act with the specific "intent to injure"? The facts suggest that he did -- for several reasons.

First, Bertuzzi admitted that he was seeking retribution against Moore for an act that had occurred in a game one month earlier. Plainly, then, his actions were premeditated; Bertuzzi had that month to plot his revenge. And it was revenge he was seeking -- not, say, a taunt or a fair fight.

Second, Bertuzzi attacked from behind. And he only let up after he had driven his victim's head to the ice. He gave Moore no chance to defend himself.

These facts show that Bertuzzi made a conscious decision to exact his revenge in a way that would maximize all possible damage to his victim. Moore never threw a punch back; he never had a chance to.

For these reasons, Bertuzzi should face charges as a felon.

Bertuzzi's Act Was Not Part of the Game, Or Even Part of a Fair Fight

Despite the fact that Bertuzzi's act was plainly a felony, some have argued it should not be prosecuted as such. Instead, professional sports should "police themselves."

These people believe that violence is inherently a part of professional athletics -- far more accepted there than in everyday society.

It's true that athletes accept the risk of injury, under some circumstances. But those circumstances do not include Bertuzzi's act.

Certainly, an accidental injury in a game -- though technically a battery -- could not be prosecuted. All players accept the risk of accidental injury.

And in sports like hockey, where fights are rife, one might even argue that players accept the risk of injury through fighting -- especially if it's a fight they start, or willingly participate in.

However, what happened that night was much more than a traditional hockey fight. Attacking from behind, the assailant gave his victim no chance to square up and defend himself.

As such, Moore didn't start the fight, or willingly participate. To the contrary, the facts show he barely had a chance even to understand he was being attacked, let alone to throw a single punch.

Transgressing Not Only the Law, But the Norms of Pro Hockey, Should Result in Prosecution

Ask any professional hockey player, and they will tell you that Bertuzzi's act is unacceptable. Steve Moore deserved, at the very minimum, the chance to protect himself.

Indeed, the law should step back when players comply with professional norms. But here, Bertuzzi violated not only the criminal law, but also the bounds of his profession. That, in my view, is the primary reason he should be prosecuted.

The tradition of incorporating professional norms into judgments as to liability, and criminality, is already embedded in our system of law. Many professionals -- most prominently doctors and police officers -- face a similarly custom-laden critique in their line of work.

Of course, the law offers some insulation to these people because their jobs routinely involve confronting danger. But in no way does it offer them unqualified protection. The same should be true for professional hockey players.

Todd Bertuzzi exploited his profession in order to commit a violent crime, hoping it would be shielded by that very profession. But his actions are without any legal justification, and violate professional norms as well. Accordingly, Bertuzzi should face criminal charges.


Mike Lynch is a first-year law student at Brooklyn Law School, where he is a Richardson Merit Scholar. He was a student of Findlaw Columnist and Brooklyn Law School Professor Anthony Sebok.