Violence: sports' omertà
On 1 November 2004, at the Dublin District Court, James McCartan was found guilty of assault causing harm contrary to section 3 of the Offences Against the Person Act. This apparently humdrum case attracted considerable media interest because McCartan had been charged as a result of breaking an opponent's jaw in the course of Gaelic football match.
Prosecutions resulting from violence in contact sports in Ireland are, proportionate to the popularity of such sports, rare. Even in incidents that clearly involve egregious levels of violence, the courts have been reluctant to intervene "beyond the touchline". The traditional argument is that sports organisations should have the capacity and freedom to self-regulate and that the authorities should be concerned with more "serious" crime, leaving sport to police itself.
This reticence was clearly shown in the reaction to Roy Keane's tackle on Alf-Inge Haaland during a Manchester derby game in 2001. During the course of that game, Keane inflicted a serious injury on Haaland's knee. The challenge resulted in Keane being sent off and subsequently banned for four matches by the FA. In his autobiography, Keane admitted that he had deliberately set out to injure Haaland, in response to an incident between them three years previously. Keane was fortunate that the prosecution services in England were satisfied that the matter had been dealt with "in-house" because he had in effect admitted to a criminal assault.
In any event, the police in England would also have been aware that there are also a number of technical complications that have to be overcome before such cases can be sustained. Given the spontaneous and robust nature of contact sport, it can be difficult to demonstrate that the culprit had the necessary intent to injure. In addition, players in a sporting contest must be assumed to have been acting consensually, and this can operate as a valid defence. More practically, cases of this nature are simply not popular with the sports community. The mantra of "what happens on the field, stays on the field" still applies. As a result, an effective policy of omertà emerges affecting the number, memory and quality of witnesses.
Nevertheless, the courts have, as of late, chosen to remind Ireland's largest sporting organisation, the GAA, that its games are in no way a licence for thuggery. In the McCartan decision, Judge William Early forcefully made this point. In praising the victim's "considerable courage" in bringing the case, the judge remarked that, although Gaelic football was a robust contact sport in which accidental injuries could be expected, to strike someone without legal justification remains a crime, whether it takes place in the street, in the family home, or the football pitch or elsewhere.
Last month, at Tullamore District Court, another Gaelic footballer pleaded guilty on a similar assault charge after kicking a prostrate opponent on the head during the course of a club game. The opponent was knocked unconscious and suffered cerebral bleeding. The defendant's offer of €15,000 in compensation was accepted by the court. Judge John Neilan further imposed an 11-month suspended sentence and instructed the defendant to enter a peace bond for five years during which he was not to play football. This football-barring order appears to be the first of its kind in Ireland.
More recently still the English Court of Appeal has seen the need to remark upon the increasing rates of criminal proceedings resulting from violence on the field of play. It has commended trial courts for the stiff custodial sentences they had handed down for sports violence, particularly on the rugby field. One case illustrates the point and resonates for all who play and administer such sports.
The defendant and the victim had found themselves at the bottom of a ruck during the course of an amateur rugby union game. The ball was cleared but a row broke out and punches were thrown resulting in the victim suffering serious eye injuries. The defendant was sentenced to eight months' imprisonment for inflicting grievous bodily harm. The accused appealed the severity of the sentence and asked that account be taken of the fact that he had no previous convictions and that he had offered to pay compensation. The appellant also pointed out that he was a married man with dependant children who had a small family-business to maintain.
The court dismissed the appeal holding that the sentence was neither inappropriate not excessive. The "off the ball" offence was, it said, so serious that only a custodial sentence could be justified. Those who play rugby and other contact sports — and who most likely have experienced such schemozzelles on the field of play —should now realise the extent of the criminal law's grasp.
That said, criminal sanction should remain reserved for incidents of gratuitous violence. Several points are noteworthy. First, not every foul on the sports field is a crime. An act on the football field becomes criminal in nature only when it is so violent that it cannot be regarded as an instinctive reaction or misjudgement in the heat of the game.
Second, the courts continue to defer to the fact that most organised sports have their own disciplinary mechanisms. Those procedures, allied to the fact that there is also the possibility for an injured player obtaining damages in a civil action, mean that criminal prosecutions should be reserved for situations where the conduct is sufficiently grave to be categorised as criminal and no less.
Third, the law of torts, specifically negligence, is seen as the best way to deter violent conduct among athletes and provide them with an adequate remedy for their injuries. This is because it imposes financial liability, hitting the culprit where it hurts the most — in their pocket. Ireland is an increasingly litigious society. Injured amateur players are no longer satisfied with the inadequate, "dinner dance" levels of insurance cover that sports clubs have traditionally provided. Litigation rates will increase.
Furthermore, professional players can, in such actions, also sue the culprit's club for being vicariously liable for the conduct of their employee. A prime example of this was seen recently in Australia where a rugby league player successfully sued his opponents and their club in negligence. The player had been injured as a result of a spear tackle. His opponents had caught him unbalanced and dumped him head first into the ground inflicting serious shoulder and neck injuries. The Australian court upheld the claim noting as evidence the fact that the injuring players in question had admitted their "guilt" during the course of an internal disciplinary hearing.
Knowledge of this case was a factor in All-Blacks Keven Mealamu and Tana Umaga failure to apologise (in the immediate at least) for their tackle on Brian O'Driscoll in the first Lions test of this summer.
Finally, the courts recognise the many benefits of participation in regulated, contact sports. They remain lenient as an acknowledgement that violence is not an intrinsic part of such games and that the participants are well informed as to the risks involved. However, what if those factors were not present? Should, for example, Irish criminal law permit the existence of a poorly administered sport that directly promotes intentional violence and has a history of financially exploiting its participants? And if not, whither professional boxing?