Last week, Bruins defenseman Zdeno Chara checked the Canadiens’ Max Pacioretty into a metal stanchion separating the two teams’ benches, concussing Pacioretty, cracking one of his vertebrae and sparking an investigation that could land Chara in criminal court. It’s not clear how many NFL players pay attention to the NHL, but those who don’t would be advised to take note.
Last season, the NFL famously cracked down on “devastating hits.” These hits were once tolerated and even celebrated, but are now severely punished. And with the mounting evidence of NFL players’ concussive damage, the crackdown seems justified. As the league’s most fearsome defensive players contemplate whether labor strife will wipe out the 2011 season, they will surely spend at least some of their idle time thinking about the devastating hits policy, how it will impact their styles of play, and how much money they stand to lose if they violate it. Those players who are aware of the Chara investigation may reasonably add an additional worry into the mix: the possibility that a devastating hit in the NFL could trigger criminal prosecution.
I can hear you now: “Impossible.” The NHL has a history of criminal prosecutions for in-game conduct, but no NFL player has ever been prosecuted for activity occurring during a game.
True, but the conduct that has previously prompted criminal prosecution in the NHL is far more similar to some of the devastating hits we saw in the NFL last season than what we saw from Chara last week.
Take the infamous Marty McSorley case, which immediately springs to mind when the topic of criminal prosecution in sports comes up. In 2000, McSorley, then playing for the Bruins, slashed the Canucks’ Donald Brashear across the helmet with his stick. Brashear fell to the ice, hit his head and had to be removed on a stretcher. McSorley was penalized and suspended for the remainder of the season, but in addition, he was prosecuted and convicted of assault with a weapon. NHL players slash each other all the time, and when caught they are sent to the penalty box, but the prosecutor’s charges focused on the site of impact and the apparent intent to injure, and those factors moved the court to convict.
“Brashear was struck as intended,” the presiding judge wrote in his opinion, “[McSorley] slashed for the head.”
If there is a legal principle borne of the McSorley case, it goes something like this: “Conviction is potentially appropriate when, during the course of play, an athlete breaches the game’s rules by intentionally using a potentially dangerous piece of equipment to target the head of an opponent who is seriously injured as a result of the blow.”
Chara insists he did not intend to injure Pacioretty and that he certainly did not intend to ram Pacioretty’s head into the stanchion. It is a feasible claim, and one which the NHL obviously accepts, as evidenced by the league’s decision to not suspend Chara for a single game. So Chara’s check doesn’t seem to evoke the McSorley principle. But an NFL player leading with his helmet and unleashing a devastating helmet-to-helmet hit -- assuming intent to injure -- certainly does.
Although a helmet is certainly not a hockey stick, when worn on the head of an athlete who can run forty yards in 4.4 seconds, it’s hard to imagine a jury or judge viewing it as any less dangerous. And with the way NFL
players sometimes woof about their intent to injure (e.g., Bart Scott announcing before the Jets-Patriots playoff game last season that Wes Welker’s “days in a uniform will be numbered”), intent may not be tough to prove.
If the NFL stages games this fall and a player who endures a devastating hit walks off the field, you can expect a fine or a suspension. In this new world of heightened attention to devastating hits, however, if the player who is hit is seriously injured or worse, don’t be shocked if the law gets involved.
-- N. Jeremi Duru, a law professor at Temple University, is the author of "Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL."