Nedlin: Sports — an excuse to assault
Guest Commentary
I woke up one weekend last month to headlines that read, “Race car driver hits and kills another racer.” As a former race car driver, I took immediate notice and interest.
At first glance, I assumed that it was an unfortunate racing incident that is known and accepted by every participant in a motor sport event. However, as I read and then watched the video, it was not your typical racing incident where a driver is killed in a violent crash.
This time, a driver, while in his car, hit another driver who had climbed out of his car to confront him, thereby launching him into the air and causing his death. In the video, you see the driver pointing toward the car with which he had the incident. You then see the car come very close to the driver. Next thing you see is a man in a speed suit and helmet being launched 10 to 20 feet in the air. He was dead.
Was this purely an accident? I surely do not think for a moment that this highly acclaimed and well-respected driver would intentionally, with all he has to lose professionally and personally, hit a young, 20-year-old, up-and-coming racer. However, is it possible that his anger of being confronted by this young racer caused him to drive close to put a scare in him, with the outcome unintended? Was this behavior reckless or negligent in causing the death? Or was the young driver negligent in not staying in his car while the other race cars are circling the track, albeit under caution?
There has always been a fine line in sports of what is a known inherent risk associated with the sport of which the participant gives implied consent to injury or death. But when is that line crossed? When should athletes be held accountable either civilly or criminally for those actions that cross the line? Should accountability occur when an act is done that is outside the scope of the purpose of the sport? Or does the culture of violent sports allow for a bleeding over to when the action has stopped?
Football is a violent sport in which the main goal is to essentially assault the other player so that he cannot advance the ball. Broken bones, concussions and torn body parts are an inherent risk of the sport.
However, what happens if after a play, when the whistle has blown, a player takes his helmet off and hits another player in the head causing him to be severely injured? Besides it just being a penalty, should law enforcement become involved? Or is the outpouring of anger and aggressive behavior that occurs even when there is no play deemed allowable because of the nature of the sport?
Hockey is another perfect example. Fights are a major attraction of the sport, yet they have no practical purpose in forwarding the primary goal of the game. If what went on during these games happened any place else we would be talking about second-degree assault with mandatory prison time. Yet, because of the culture of the sport, nothing is done; rather it is condoned and praised.
Many say it is a form of self-policing so that greater injuries do not occur. The same can be said for a pitcher throwing at a hitter for retaliatory measures. But what happens when he hits the player in the head causing a subdural hematoma and death? That is not part of the game. The baseball in the hands of a professional is a deadly weapon, and in order to make it to the big leagues they have the pinpoint control to direct that deadly weapon.
Taking off my sports-fan hat and putting on that of a former prosecutor, all of the scenarios can potentially be viewed as criminal. Let’s look at the racing incident. Can it be argued that the driver acted recklessly and caused the death of another or failed to perceive a substantial and unjustifiable risk, which constitutes a gross deviation from a reasonable person standard? The former is the definition of manslaughter and the latter is criminally negligent homicide in Colorado.
Both of these are clearly arguable. However, at the same time, what is the standard for this to be determined? How do you prove reckless behavior without knowing the intent of the driver given the circumstances?
He was doing what everyone else was doing in terms of circling the track under caution. It was night, there were shadows, the other driver on the track was in a black racing suit; these are all viable defenses. As for the reasonable person standard, is it just that or is it a reasonable person standard of someone who is a professional race car driver? As law enforcement, it would be difficult to find probable cause to arrest, let alone prove beyond a reasonable doubt as a prosecutor.
So where is the line to be drawn separating sport from assault or homicide? For now, it seems to be invisible. Should the rules of all sports be changed to state that any intentional or reckless behavior on the part of a participant that causes injury or death to another participant through conduct that is not included in the purpose of the sport be held criminally liable under the laws of the state in which the conduct occurred? Or do we do nothing but watch and wait for the next victim under the guise of sport reminiscent to the days of the Roman Empire? To that idea, I say, thumbs down!
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.
