Goal or Gaol: when are acts in sport considered criminal?

A mass brawl erupted last Tuesday night in a Major League Baseball game between the Cincinnati Reds and the Pittsburgh Pirates. It lasted several minutes and involved players, substitutes and coaches.

The brawl's initiator was Reds' pitcher Amir Garrett who stormed over to the Pirates dugout from the pitching mound and landed punches on Pirates' pitcher Trevor Williams. Garrett was "ejected" from the game and will likely face a lengthy suspension as punishment for his actions. However, it is extremely unlikely that Garrett will face any criminal prosecution.

The same is often true for English sports. Take English rugby bad-boy Manu Tuilagi's punch on future England teammate Chris Ashton in 2011. Ashton was left bleeding from above his eye and required medical attention. Tuilagi only received a yellow card on the pitch but was cited and handed a 5 week suspension for the monstrous punch, meaning he missed that year's Premiership final. Again, however, he did not face criminal punishment.

If the same punch had been landed by, for example, a nightclub reveller in full view of the police, it is extremely likely they would be charged with assault. So are the rules different on a sports' field?

Not always. Cue former Newcastle, Everton and Glasgow Rangers football striker Duncan Ferguson.  Whilst playing for Rangers against Raith Rovers in 1994, Ferguson head-butted an opposing player. Again, Ferguson only received a yellow card on the pitch. However, he was subsequently charged with assault and was imprisoned for 3 months. It should be noted that Ferguson had two previous convictions for assault which may have influenced the decisions to bring charges against him.   

So what is the law in this area? To answer this, incidents are often split up into "On-the-ball incidents" and "Off-the-ball incidents".

Quick Read:

• On-the-ball incidents: 'The Doctrine of Implied Sporting Consent' provides that by playing sport athletes accept (to a point) that deliberate contact during a match may lead to grievous bodily harm. Although the most serious on-the-ball incidents can amount to criminal conduct, the Courts prefer to allow the relevant sporting governing body to deal with incidents if possible.
• Off-the-ball incidents: These incidents are criminally prosecuted more frequently than on-the-ball incidents. However, a 'public interest test' is applied when deciding whether to bring criminal proceedings. Off-the-ball sporting incidents are generally less likely to meet the public interest threshold for prosecution compared to similar incidents outside a sporting context, especially where a sport's governing body brings their own disciplinary proceedings against a player.

Detail:

1. On-the-ball incidents

   On-the-ball incidents are characterised by contact between players outside the rules of the game but during the course of it. An example would be a rugby player recklessly tackling an opponent around the neck.

   Doctrine of Implied Sporting Consent

   Such incidents are often justified by the "Doctrine of Implied Sporting Consent" which offers athletes an exemption for dangerous acts committed during sport which would in normal circumstances be a criminal offence under the Offences Against the Persons Act 1861. This doctrine is crystallised in the factually extraordinary case of R v Brown [1994] which related to consensual sadomasochistic acts. In this case, the House of Lords (then the highest court in England and Wales) held that although ordinarily an individual cannot consent to the infliction of bodily harm against them, there is a 'sporting exception' to this rule. The Court stated that by taking part in contact sport an athlete, "assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm".

   However, the exemption offered by the Doctrine of Implied Sporting Consent is not a blanket one. The House of Lords also stated in R v Brown,

   "What we need to know is whether, notwithstanding the recipient's implied consent, there comes a point at which it is too severe for the law to tolerate….the law will not license brutality under the name of sport".

   Further guidance in this area was provided by the Court of Appeal in R v Barnes [2005] where an amateur footballer faced criminal prosecution for a tackle on an opponent during the game.  The Court held that even where the offending contact was a foul, it was still necessary to assess whether the foul could be anticipated during the course of a normal game of football or whether it was so unusual it would not be expected during a normal game. The Court gave some factors which should be used to determine whether an athlete's conduct crossed the threshold to be considered criminal:

   "the type of sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant".

   Accordingly, the level of contact acceptable in a rugby match will be higher than during a basketball match.

   The Court's approach

   During the R v Barnes appeal , Lord Woolf (the then Lord Chief Justice of England And Wales) stated that as sports had their own disciplinary bodies for upholding standards of conduct and enforcing rules, not only were criminal proceedings not usually required, it was undesirable that there should be any. Lord Woolf highlighted that an injured player could launch a civil action against the player who hurt her to obtain damages and that criminal prosecution should be reserved for incidents in sport that were "sufficiently grave" to be considered criminal.

   Lord Woolf's suggested approach to sporting on-the-ball incidents above has been adopted by English and Welsh courts ever since.

2. Off-the-ball incidents

   Off-the-ball incidents are characterised by contact between players outside the rules of the game and not during the course of it. An example would be Manu Tuilagi's punch against Chris Ashton discussed earlier.

   Legally, the position on off-the-ball incidents is far simpler. As an off-the-ball incident cannot be anticipated to take place during the course of the game, they do not fall under the R v Brown sporting exemption. Consequently, far more off-the-ball incidents result in criminal prosecution than on-the-ball ones.

   Public Interest Test

   However, off-the-ball incidents in sport are still prosecuted far less frequently than if the same act was committed outside a sporting context. The reason for this is the Crown Prosecution Service applies a 'public interest test' when deciding whether to bring criminal proceedings. There are numerous factors which are considered as part of the public interest test, including:

• The seriousness of the offence committed;
• The culpability of the suspect (including whether a suspect has a previous criminal conviction and whether the offence was premeditated);
• The circumstances of and the harm caused to the victim (including taking into account the views of the victim); and
• The impact on the community.

As sports have their own governing bodies which issue disciplinary proceedings against players for off-the-ball incidents, these incidents are less likely to meet the public interest threshold for prosecution compared to similar incidents outside a sporting context. 

Take Ben Flower's brutal punches against Lance Hohaia in the opening minutes of the 2014 Rugby League Grand Final. In any non-sporting context, Flower in all likelihood would have faced criminal prosecution. Although the police investigated the incident, they received no complaints from the public, Hohaia did not want to press charges and Flower had no previous criminal conviction. These factors, coupled with the RFL referring the decision to an independent disciplinary commission consisting of a Judge who ruled Flower should be banned for six months, meant no criminal proceedings were brought against him.