Lex Sportiva: Thoughts towards a Criminal Law of Competitive Contact

By Lassiter, Christo | Forum on Public Policy: A Journal of the Oxford Round Table, Fall 2006 | Go to article overview

Lex Sportiva: Thoughts towards a Criminal Law of Competitive Contact


Lassiter, Christo, Forum on Public Policy: A Journal of the Oxford Round Table


Abstract

It sometimes happens that athletes fall to injury rather than superior play. At what point should the criminal law come into play? In a first round National Football League playoff game last season, The Cincinnati Bengals' hopes ended on the second play of the game after the opening kick off, when Pittsburgh Steeler defensive tackle Kimo von Oelhoffen Pittsburgh viciously tackled Cincinnati Bengal quarterback Carson Palmer by bending his leg left against the knee joint in such a way as to tear the anterior cruciate and medial collateral ligaments in Palmer's left knee. Palmer left the field on a stretcher. Should von Oelhoffen's hit on Palmer be regarded as an act of criminal misconduct?

It would seem undeniable that the promotion of legitimate vigorous competitive contact sport is a worthy goal that should brook no interference from the criminal law. It is equally certain however that criminal objectives intentionally or recklessly carried substantially to fruition should be punished in criminal law regardless of whether they masquerade as legitimate sport. Criminal violence used to accomplish a competitive advantage is not a legitimate part of sport, and this is so regardless of whether the criminal attack occurs on or off the field of play.

The criminal law applies to on-field misconduct. The English Rule looks to evaluate mens rea but allows a high presumption of innocence for players acting within the rules and custom of the game. Under the American Rule players consent to risks inherent in the rules and custom of the game and so long as the rules are reasonable, there is no criminal liability for accidents, and injury is excused. Neither legal tradition nor the rules of the games adequately address strategic acts of criminal thuggery masquerading as legitimate sport. This article examines contemporary incidents in American football to offer thoughts toward developing a criminal jurisprudence to address intentional or reckless actions causing grievous bodily injury on the playing field.

I. Introduction

A. The Kimo Van Oelhoffen Hit on Carson Palmer.

On January 8, 2006, in its first playoff game since 1991, the Cincinnati Bengals, American Football Conference North Division Champions, faced Division rivals, the Pittsburgh Steelers, a wild card team. The Cincinnati Bengals' hopes ended on the second play of the game after the opening kick off, when Pittsburgh Steeler defensive tackle Kimo von Oelhoffen viciously tackled Cincinnati Bengal quarterback Carson Palmer by bending his leg left against the knee joint in such a way as to tear the anterior cruciate and medial collateral ligaments in Palmer's left knee. (1) Palmer left the field on a stretcher. No one cried foul. Game officials did not penalize von Oelhoffen during the game, nor did league officials fine von Oelhoffen after the game. The Bengals managed a 17-7 lead into the second quarter, but without Quarterback Palmer, the Steelers ultimately pulled ahead and won the game 31-17. (2)

[ILLUSTRATION OMITTED]

Should von Oelhoffen's hit on Palmer be regarded as an act of criminal violence? The best start to answering this question is to review a photograph of the attack as it occurred.

The photograph shows that the ball had left Palmer's hand and that he stood completing his follow through. This is one of the most vulnerable poses in football. (3) The NFL has long penalized 300 pound defensive lineman who come barreling in to level a quarterback in this position, especially where the tackler leads with his helmet. The photograph shows that von Oelhoffen did not come barreling in. The photograph shows that von Oelhoffen was not pushed nor did he fall out of control onto Palmer. The photograph entirely refutes the hypothesis of accident, out-of-control athletic exuberance or even misadventure. Instead, the photograph quite clearly shows von Oelhoffen in control and forcing Palmer's left knee to bend sideways against the joint. …

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