Canada: Foul Play: How Far Is Too Far In Recreational Sports?

Originally published on April 15th, 2015

High profile professional cases of on-field misconduct (think Bertuzzi, McSorley, etc.) have generated considerable headlines in the past, but what about when you or me laces em' up and goes out on the weekend to play beer league sports?

What are the legal lines we encounter between legitimate and in the heat of the moment physical contact (a body check or slide tackle) and actions which are going to land you in hot water?  When is a penalty not simply 5 minutes but carries criminal consequences?  How far is too far?

In sentencing Marty McSorley for the "baseball swing" of his stick to the head of Donald Brashear, the court cited previous judicial comments advocating an end to coaches, managers and owners valuing intimidation and violence above skill.  Only four years after the McSorley incident, Todd Bertuzzi pled guilty to assault causing bodily harm for a punch to the head of Steve Moore. The McSorley and Bertuzzi incidents are prominent examples of courts grappling with the line of distinction between acceptable and unacceptable physical contact in high intensity sports. Judge Weitzel in R. v. Bertuzzi (2004 BCPC 0472) cited from an earlier case, R v. Watson:

Hockey is a fast, vigorous, competitive game involving much body contact. Were the kind of body contact that routinely occurs in a hockey game to occur outside the playing area or on the street, it would, in most cases, constitute an assault to which the sanctions of the criminal law would apply. Patently when one engages in a hockey game, one accepts that some assaults which would otherwise be criminal will occur and consents to such assaults. It is equally patent, however, that to engage in a game of hockey is not to enter a forum to which the criminal law does not extend. To hold otherwise would be to create the hockey arena a sanctuary for unbridled violence to which the law of Parliament and the Queen's justice could not apply. I know of no authority for such a proposition.

The Judge then goes on then to quote from the Maki case, which is one of the first cases involving an NHL hockey player:

No sports league, no matter how well organized or self-policed it may be, should thereby render the players in that league immune from criminal prosecution.

But, what about weekend warriors?

Amateur athletes should be aware that criminal responsibility and civil liability are not limited to the professionals.  This is something to think about the next time you lace up.  Your "red mist" at the beer league game can have serious consequences.

In R. v. Adamiec (2013 MBQB 246),  the Manitoba Court of Appeal ruled on criminal sanctions in the context of an amateur soccer match.  Justice Mariella started the decision with the following:

George Orwell warned that lurking behind the fun offered by competitive sports is the threat of the arousal of the most savage combative instincts.

Factually, the accused repeatedly kicked the opposing team's goalie while going after a loose ball in the penalty area.  The trial judge found the accused guilty of assault – the appellate court acquitted. The kicking was brief and ended when the referee blew the whistle, but in that time the goalie suffered serious injuries to the jaw, neck, chest, and left hip. The appellate Court noted that players consent to physical contact as a risk inherent in the sport but they do not consent to force applied in excess of the particular game's "playing culture".  The judge succinctly stated the key question, "When does misconduct become a crime?"

A key distinction in arriving at the acquittal appeared to be between contact that occurs near the ball and that which is "off the ball". Generally, physical violence occurring "on the ball" is "the most troublesome scenario" for the courts to grapple with in that the line between application of lawful force in a contact sport and assault is the toughest to define (i.e. as opposed to a sucker punch away from the play).  The incident in Adamiec occurred inside the penalty area and even though the accused actions were in breach of the rules of soccer, he was acquitted because his actions were found to be a legitimate sporting play as he was going for the ball and not the goalie; there was no intent to injure the complainant. Further, Adamiec's force was not motivated by a non-sporting purpose such as an intentional retaliatory attack designed to injure an opponent.

A similar result occurred in R. v. Chu (2006 BCPC 587) where the accused delivered a body check in a recreational hockey game which resulted in a fractured jaw. Although the league was non-contact, the Court concluded that Chu's conduct was directed at knocking his opponent off the puck rather than causing serious bodily harm. The charge was dismissed because the conduct was within the scope of consent provided by the opponent by virtue of playing the game.

Unlike the previous "on the ball" cases, R. v. Carroll (1995 CanLII 1123 (BCCA)) centered on a 42 year old amateur soccer player who head-butted an opposing player suddenly and without warning. Shades of Zidane in the 2006 World Cup Final come to mind. However, an opposed to Italian defender, Marco Materazzi who suffered no apparent physical injuries from Zidane, the complainant in Carroll suffered dental damage which included three broken teeth. The B.C. Court of Appeal ordered a conditional discharge instead of a fine and criminal conviction as the key factor weighing against a criminal conviction appeared to be the impact on Carroll's career prospects.

The principles emerging from these cases appear to be that criminal responsibility may not be necessarily so much a function of the harm caused by conduct on the field, ice or court so much as the broader surrounding circumstances.  Context is key. If an action is taken with the intention of playing the ball and is within the playing culture of a sport, there is a lower likelihood of criminal responsibility being imposed regardless of the injury suffered by the other player.

Two civil cases demonstrate two different outcomes.

The case of Zapf v. Muckalt (1996 CanLII 3250 (BCCA)), illustrates one outcome. The Plaintiff in Zapf was playing hockey for the Nanaimo Clippers when a hit from behind rendered him a quadriplegic. In determining liability, the Court asked what a reasonable competitor would do when taking into account the speed, physicality, stresses, and risks inherent in participating in the sport. While the hit in Zapf occurred at a time when hitting from behind was strictly forbidden, the Court noted that breach of the rules is not necessarily sufficient to establish liability. Despite this, the Court determined the hit was careless in the circumstance and therefore imposed liability for a breach of the standard of care required in the circumstances In Zapf, carelessness was enough for liability to be established in the context of a contact sport, the Plaintiff did not need to establish intentional or reckless intention of harm during the game in order to establish civil liability.

In contrast to the result in Zapf, the Court in Nichols v. Sibbick (2005 CanLII 23685 (ON SC)), set out that "Western" cases of civil liability in sports may be different than case law in Ontario.  The plaintiff in Nichols had to establish that the defendant had an intention to injure or was reckless to the consequences of his actions as opposed to the lower threshold of carelessness. The hockey game at issue was fast-paced and competitive between the two top teams in a recreational league. Sibbick attempted to lift Nichols' stick but instead hit him in the eye causing significant damage that resulted in the eye being surgically removed. Nichols emphasized Sibbick's admission that he "lost control of his stick" but such carelessness was not sufficient for the Court because it did not establish intentionally harmful or reckless conduct. The Court concluded that the tactic employed by Sibbick (it was a legitimate tactic a reasonable competitor would use – i.e. attempting to prevent a shot by checking Nicholas' stick) was reasonable and did not impose liability.

But wait, hot off the presses, the 2015 BCSC case of Forestieri v. Urban Recrecation Ltd. (2015 BCSC 249) may represent the latest work on this topic.  The brief facts are: slidetackle by a soccer player in no slidetackle recreational league carries civil liability, but most notably, civil liability for the team captain...I will follow up on this case in my next blog.

So, at the end of the day what do we take from this?  Playing hard and aggressively is fine and, if within the rules of the game, you stand a much greater chance of being onside.  But, context is everything – intent to injure or just being plain reckless may get you in trouble whether by way of a match penalty, a yellow card, or litigation.  Contact sports cannot render lawful what outside the lines is actionable.  And, remember we all have to go to work on Monday.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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