Pacioretty suffered a broken vertebra and serious concussion. However, the National Hockey League declined to discipline Chara, though the police are investigating the matter. NHL commissioner Gary Bettman announced “Our hockey operations people are extraordinarily comfortable with the decision that they made.” Well, fans and Pacioretty are not. While Pacioretty does not want criminal prosecution, but does believe that Chara should have been disciplined.
Likewise, Geoff Molson, chairman and owner of the Canadiens, has written the NHL that his “organization does not agree with the decision taken yesterday by the National Hockey League” and noted that violence had been a serious problem in the NHL.
We discuss this controversy in torts in the context of the case of Hackbart v. The Cincinnati Bengals involving a game between the Denver Broncos and the Cincinnati Bengals in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was injured by a blow by Bengals’ offensive back, Charles “Booby” Clark. The court ruled that the hit fell outside of the NFL rules and thus Hackbart did not consent to such a battery. The reason was that the hit violated the rules of the game. However, there was no discussion of whether the rules of the NFL differed from the practices or industry custom.
By comparison, many fans want to see highly physical confrontations in NFL games. Indeed, I recall reading years ago how our teams had to “re-train” European players to be more aggressive when playing in the NHL. Those players were trained to follow the rules and avoid things like bodychecks.
The liability for sports accidents has even arisen in games like golf.
The article below recounts how there have been three cases of hockey violence since 2008.
Some judges have been less tolerant of the idea of violence being an industry custom in hockey. In the case of Dino Ciccarelli of the Minnesota North Stars, he was jailed for a day and fined him $1,000 for hitting an opposing player with his stick.
This long-standing controversy (particularly in football and hockey) presents a novel issue. In terms of consent for intentional torts, the courts have always held that there are some things that people cannot consent to such as crimes. Thus, if the underlying conduct is criminal, courts will routinely ignore consent to the conduct. The judge in the Ciccarelli case noted that he was not going to let players engage in conduct in the stadium that would be a crime just outside the stadium in the street.
Jonathan Turley