Published August 10, 2002
Reports of violent sport incidents are becoming startlingly frequent. In 1996, members of the University of Moncton hockey team (including players and an assistant coach) attacked the official over what they perceived to be a controversial goal at the end of the game.
The National Post on Friday, August 9, 2002 reported a $10,000 lawsuit filed by a grade four student against his hockey coach. The young boy alleged the coach threatened to ‘put a bounty on his head’ during a violent post-game tirade. The coached denied the allegation saying the student is simply seeking revenge for being cut from the team. He further alleged the boy hit his son in the stomach with the butt of his stick at the end of a game.
At the end of one of the final games of the season a basketball player within the British Columbia Colleges Athletic Association threw a water bottle at the official while shouting and gesturing profanities.
At the conclusion of a field hockey game during the 1998 Commonwealth Games in Kuala Lumpur, the Canadian goalie allegedly kicked an opposing Pakistani player kneeling on the turf in prayer (the goalie maintains he tripped over the other player accidentally).
Finding examples of behaviour in sport that we would acknowledge as violent is not difficult. But they do go to show the breadth of the incidents across many sports, not just hockey, although hockey is perhaps the most high profile and prolific. But soccer, football, basketball, and figure skating, among others, are all involved. And it is not just players committing acts of violence. Although not as frequent, there have been an alarming number of violent incidents perpetrated by coaches and by spectators. Violence by and between players, officials, coaches and spectators have all been documented -- far too frequently.
Over twenty years ago, William McMurtry led an inquiry into violence in amateur hockey . In his report, McMurtry pointed, with some certainty, to what he believed to be the causes of violence in amateur hockey . Interestingly, his observations resonate today, perhaps even more vividly.
There is little empirical data on the effects of this violence, with perhaps the exception of amateur hockey about which there has been research on spinal injuries. A study appearing in the March 2000 edition of the Canadian Medical Association indicated that over 243 severe spinal injuries had occurred in hockey games over the previous three decades . Those hurt ranged in age from 11 to 47 years, but more than half were suffered by players ages 16 to 20 playing competitive hockey. Only six of the 243 were female. Sixty-three of those incidents that were reported resulted in death or paralysis. Of that 63, only 2 were reported before 1982, giving some indication of the extent to which hockey-related injuries have recently become more severe. Forty percent of the total number of incidents resulted from the player being hit from behind. Overall, 77 percent occurred when the player hit the boards. Another 16 percent came as a result of high-speed collision between two players.
Violence in sport is a huge and complex topic. This paper takes a judicial look at violence in sport from both the criminal law and civil law perspectives, applying the principles underlying judicial decision-making to organizational policy making in the area. My focus will be on amateur sport (as opposed to professional sport) and will concentrate on violence by and between players during competition.
We can look at violence in sport from any number of perspectives – what causes violence, who is violent (spectators, coaches, athletes, etc), what is the effect of violence on the playing field, how do we define violence. I am going to address violence from a criminal perspective and a civil or tort perspective, and will also discuss policy implications for the sport community as a whole, and for individual sport bodies.
The vast majority of Canadian sport organizations and clubs are ‘private tribunals’. They are not statutorily based and as such, they are autonomous and self-governing associations. They have the power to make rules and regulations that affect people engaged in their activities. Indeed, historically, the courts have been reluctant to interfere in the affairs of private tribunals such as sport organizations.
One of the key obligations of a sport organization is to ensure a safe sport environment – for both athletes and spectators. In many sports a certain level of violence is desirable and is, in fact, an inherent part of the sport. When one participates in such activities it is done with the knowledge and understanding that a certain amount of violence may occur and that injury may happen. However, by simply participating in a sport, the athlete does not consent to all forms of violent activity. The law recognizes that there are limits as to what one may consent to. This is true whether we focus on criminal law or civil law.
CRIMINAL LAW - ASSAULT
Some violent acts occurring within sporting competitions do attract charges of criminal assault or the more serious form of assault, assault with a weapon . Section 265 of the Canadian Criminal Code defines assault:
265(1) A person commits an assault when
Section 267 of the Criminal Code defines assault with a weapon:
267(1) Everyone who, in committing an assault,
(2) For the purposes of this section and sections 269 and 272, “bodily harm” means any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.
The two key elements in making out an assault are intention to inflict the force and lack of consent to the force.
Consent to the force is a full defense to a charge of assault. Determining what it is one consents to is very often the most vexing part of any assault matter. Indeed, can an individual consent to any kind or degree of violence? In R. v. Jobidon the Supreme Court of Canada said fighting is unlawful , even where the victim of the fight consents to such activity. The Court did expressly state however, that its decision did not reflect on “the legality of properly conducted games and sport”.
The law does, however, impose some limits on consent in sport cases. Two criminal cases are of particular help in determining the standard of consent . In R. v. Leclerc  the court said participants give “implied consent to those assaults which are inherent and reasonably incidental to the normal playing of the game at this level”. By ‘normal playing of the game’ the court seems to accept as a part of the game a certain amount of violent action outside the formal rules of the game. The court also stated that any interpretation of the issue of consent should be made flexibly having regard to all the conditions under which the game is played.
In determining whether the conduct complained of exceeds the scope of an acceptable level of implied consent, the court in R. v. Cey  set out a number of objective criteria through which consent could be determined. The list included: the setting of the game, whether the game was part of league play and the nature of such a league, the age of the players, conditions under which the game is played, the extent of force employed and, finally, the degree of risk and probability of serious harm occurring. Underlying the issue of consent for this court was the risk of injury and the severity of any potential injury. The reasoning in Cey was applied in the subsequent cases of Leclerc and R. v. Ciccarrelli 
In R. v. Leclerc the Court stated at paragraph 25:
The weight of judicial authority appears to be that a player, by participating in a sport such as hockey, impliedly consents to some bodily contact necessarily incidental to the game, but not to overtly violent acts, all of which should be determined according to objective criteria.
Conduct that evinces a deliberate purpose to inflict injury will generally be held to be outside the immunity of the scope of implied consent in a sports arena. The ultimate question of implied consent, as in R. v. Cey, is whether the crosschecking or push of the complainant across the neck in close proximity to the boards was so inherently dangerous as to be excluded from the implied consent [emphasis added].
In Ciccarrelli, applying the standard set out in R. v. Cey, the court set out the test of consent as follows:
[There is] such a high risk of injury and distinct probability of harm as to be beyond what, in fact, the players commonly consent to, or what, in law they are capable of consenting to.
The court then went on to apply the criteria set out in Cey and provided greater detail to the analysis:
In all three cases, the courts recognized that even where a particular level of violence is expected, and indeed may have been consented to, it may be so inherently dangerous as to preclude such consent.
It was previously stated that sport organizations have the ability to make rules to govern themselves and their activities. Where this does not happen, the courts, albeit reluctantly, will step in. The cases discussed in this section give sport organizations some insight into the limits of violent activity acceptable from a public policy perspective and some parameters for determining those limits.
It is incumbent on sport organizations to use these guides in order to determine and control the level of violent behaviour that may be appropriate or desirable in any particular program run by the organization. In other words, the organization needs a clear policy on the level of violence that will be tolerated and then needs to ensure compliance with such policy initiatives through rules, officiating, proper coaching and the implementation of codes of conduct, among other mechanisms.
CIVIL (TORT) LAW – NEGLIGENCE & LIABILITY
An increasing number of violent acts occurring during competitive sport events are being addressed using tort law . For the amateur sport organization, this avenue of recourse has much broader and dramatic implications. Action under the criminal law is between the state (i.e., the Crown) and the perpetrator of the violent act (although not necessarily the specific outcome or injuries – see the appeal courts decision in Leclerc). Essentially, what distinguishes a criminal assault from a civil claim for negligence is the notion of ‘intention’. In an assault the perpetrator must be shown to have intended the violent act. In a negligence case, the fact the consequences of the act were not intended is not relevant. The fact that the perpetrator’s conduct failed to meet a certain ‘standard of care’ is typically sufficient to make out a case of negligence (assuming the other elements of negligence can be met ).
While negligence refers to one’s conduct, liability refers to taking responsibility for the injury or damages caused by the negligent act. Liability can be direct or indirect. That is, a party (or parties) maybe held responsible for their own (negligent) actions. Alternatively, some parties may be held responsible for the conduct of others. For example, parents can be held responsible for the conduct of their children, and sport organizations can be held responsible for the negligent conduct of their employees or volunteers, including coaches and officials.
The issue of consent is important in determining civil liability, as it is in the determination of an assault. It is possible for the victim to have consented to the violent (and negligent) act that led to the injury. This is the defense of volenti non fit injuria  (‘harm does not come to one who consents’). The question, of course, as in the case of an assault, is what was consented to under the circumstances
In the case of Dunn v. University of Ottawa , the court accepted that by participating in the intercollegiate game of football, Dunn, a punt return specialist, had consented to a certain degree of violence, but that consent covered only what might be reasonably expected under the circumstances.
In that decision at paragraph 36, Mr. Justice Cunningham wrote:
Not every breach of the rules, by any stretch of the imagination, will result in a finding of negligence within the context of a game such as football. Such non-compliance is but one factor in any judicial determination. Only when there is a deliberate intention to cause injury or a reckless disregard for the consequences of one’s actions in an uncontrolled and undisciplined manner will a finding of negligence result.
The Court found that while a punt return specialist consents to being hit hard by a tackler, he does not consent (and the player did not consent in this instance) to “being head butted or speared in the face by an onrushing 225-pound linebacker while in that [i.e., looking up tracking the ball within the five yard no-tackle zone] vulnerable position”. The Court found that the actions of the Defendant, in this case, fell far below the standard that might reasonably have been expected of a university football player.
In this case the coach of the Defendant’s team, as well as the University were also sued. The Plaintiff alleged that the coach “failed to prevent his staff and players from embarking upon unreasonably dangerous activities during the course of a football game” and that the University, as the employer of the coach, was vicariously liable for the coach’s negligent actions. The Court examined the coach’s responses to past incidents of violent activity and in this instance found that the coach had taken reasonable steps to deal with unruly actions and ‘trash-talking’. The Court did point out that “[w]ithout any doubt, at the university intercollegiate level, it is the responsibility of the coach to encourage and teach fair play and good sportsmanship. The game is played to win, but it is not played to win at all costs”. In summary, the Court found that while there might well be circumstances under which a coach could be held responsible for the actions of a player, this case was not one of them.
Those in positions of authority within the sport organization need to be concerned about their own actions but as well, the conduct of those for whom they have some responsibility. In particular, sport managers need to be concerned with the conduct of program participants, coaches and officials. The level of violence one sees in many competitions has as much to do with coaching technique and attitude and officiating behaviour as it has to do with the actions of a handful of players. Ultimately, the sport organization is responsible for the ‘tone’ set by those controlling the competition.
It is important to note that when courts examine the issue of consent (whether in the criminal or civil context) they have considered whether a rule of play has been breached, and the nature and origin of that rule. The courts recognize that some rules have been in place as a direct response to safety concerns, arising usually as a result of a historical analysis of injury trends. For example, between 1966 and 1987 in the game of hockey in Canada, there were 117 cervical spine and spinal cord injuries . Twenty six of the injuries resulted from hits from behind near the boards. In response to these statistics, the Canadian Amateur Hockey Association introduced the ‘no checking from behind rule’ in 1984. It is notable that the courts in both Cey and Leclerc both recognized this rule and differentiated it from other rules of the game as a “safety rule”.
A similar distinction has been made by the courts involving other sports. (For example, in the case of Dunn v. University of Ottawa described above, the Court recognized the ‘five yard non-encroachment rule’ on punt returns as a safety rule. In the case of Hamstra v. B.C. Rugby Union , which involved the collapse of a ‘scrum’ in a game being played by junior rugby players, the Court noted that other jurisdictions had modified the scrum rules for junior players for safety reasons. The courts clearly take a different view of those rules established for safety purposes, and the breaches of such rules, than they do of other rules of the game.
While the courts are prepared to give substantial deference to the internal rules and standards governing a particular sport or event, they are not prepared to blindly accept any standard. In Dyck v. Manitoba Snowmobile Association  at p. 106, Mr. Justice Kroft stated that, even where an association might follow its usual procedures and such procedures are common practice within the sport, if those procedures are unreasonable, given the circumstances, the court will not hesitate in finding such conduct negligent. Similarly, in Hamstra v. B.C. Rugby Union, the court took note of rule modifications made in other Commonwealth jurisdictions (but not in the province of British Columbia – or elsewhere in Canada) for safety reasons. The Court warned the Union that, now knowing about the use of these rule modifications in other jurisdictions, if a similar accident occurred in B.C. in the absence of such modification, the Court would view the matter much differently.
A POLICY APPROACH TO VIOLENCE IN SPORT
The preceding section is a cursory overview of the law regarding violence in sport. So what should a sport manager take from this information?
Sport organizations play an integral role in controlling the game through their own policies and rules and those of their governing bodies. A sport organization in fact has significant, if not ultimate control over the level of violent conduct tolerated within its purview and it exercises this control (or abrogates control) through its own rules, regulations and policies. Clearly, where a sport organization abrogates control, other venues of judicial control will step in.
The Concise Oxford Dictionary (New Edition) defines policy as “prudent conduct; course or general plan of action”. Policy allows an organization to determine what it is about, what its goals are, what its objectives are and how it will achieve those goals and objectives. Good policy provides a type of ‘road map’ for an organization ensuring that its destination (i.e., the substantive goals and objectives of the organizations and its programs) are clear and the road to reaching those ends are also clear and consistent with the philosophy and objectives of the organization. Problems typically arise where an organization is not clear in its vision, where its objectives compete with one another and where there is a tension or ambiguity between the substantive ends for an organization and the procedural means of getting there.
Policy is very much influenced by the values, beliefs and interests of those within the organization. Indeed organizational policies often reflect a mix of the values, beliefs and interests of an organization’s members – sometimes conflicting, sometimes ambiguous, sometimes vague and incomplete – and sometimes, non-existent.
Hobart Burch in his book “The Why’s of Social Policy”  identifies three categories of policies that typically operate within an organization and can certainly be identified within the context of the sport organization. These are firstly, the intended or duly adopted policies of the organization; secondly the unintended policies that simply evolve over time and, thirdly, a lack of policy, which in itself may make a policy statement and thus has been included as a category
Fully intended and duly adopted policies Burch describes as de jure policies. De jure means “from the law”. These are policies or rules that are written in an organization’s constitution or bylaws, in its procedural or policy manuals, or in various forms of contracts and agreements. For example, many sport organizations have de jure polices on conduct, selection, appeals, harassment, hiring, firing, benefits, and financial management, to name but a few.
Unintended policies are described as de facto policies where de facto means, “from what is done”. These polices evolve over time as ‘common practices’ of the organization and may, over time, acquire the same force and effect (at law) as the de jure policies. Unfortunately, they also typically arise as a consequence of a ‘bending’ of an official or de jure policy that may no longer be appropriate or workable. In other words, de facto policy is often evidence of a neglect of de jure policy.
The third category of policy is no policy at all. Burch calls this “default” policy; default meaning a failure to act. Typically, default policy reinforces the status quo and reflects the vested interests of those in control at the time. Default policy is the most difficult to deal with – as noted by Burch, “how do you get a grip on empty air? Default policy reflects acts of omission rather than acts of commission. It also often reflects a ‘willful blindness’ on the part of the organization.
When it comes to looking at how internal policies of sport organizations currently address the issue of violence, it is fair to say that there is little evidence of de jure policy but abundant evidence of de facto and default policy.
Nonetheless, we have seen some isolated examples of encouraging policy responses. For example, safety rules are being incorporated into a number of sports such as football and hockey, as previously described, or are being implemented at different age or skill levels within a particular sport, such as rugby and boxing. Many sport organizations have adopted ‘zero tolerance’ codes of conduct for players and parents, and others have required all participants, including parents, to sign ‘fair play contracts’ . These measures are reactions to specific safety and conduct problems. However they are ad-hoc responses -- what is needed is a more comprehensive approach to policy that stems from an explicit consideration of the organization’s philosophy and values, and reflects these at all times and throughout all aspects of the organization’s operations.
To be effective such a concerted policy response must come both from the top (that is, from a national perspective) and from the grassroots (that is, from individual organizations and clubs). The amateur sport community as a whole needs to take and promote a position on violence in sport. At the same time, each sport discipline and each sport club needs to translate that vision and put it into effect in their own circumstances, meaning that they must develop new policy around violent conduct and possibly adapt existing policies on issues related to conduct to ensure that there is consistency of outcomes.
There is widespread agreement that the incidence of violence in amateur sport is increasing and is unacceptable. The issue needs to be addressed generally, across amateur sport (and professional sport as well), and must be dealt with more specifically by individual sports and sport organizations. The British sport system, through its national Sports Council, has recognized this need for a two-tiered approach. In response to a discussion paper put forward by its Law Commission on consent in the criminal law, the U.K. Sports Council  submitted that sport was a special case when dealing with the issue of consent to violent acts. The Council’s policy response is insightful and is quoted in part below:
Given the impracticality of trying to establish through law a common standard against which the conduct of participants in all, or any, sports may, for legal purposes be assessed, all governing bodies of sport should be encouraged to review the rules or laws of their sport (and, indeed, their deterrent disciplinary procedures) so as to ensure that participants are provided with the greatest, reasonable degree of protection from injury capable of being caused by another participant acting recklessly or with intent to cause injury.
This is a promising start.
On the Canadian scene, progress is also being made. In February 1999 the Canadian Centre for Ethics in Sport produced a discussion paper on violence in sport entitled “Building a New Brand of Sport – What About Violence”  . While there may not be consensus on the points advanced in this paper, at least it represents a starting point for discussion by the Canadian sport community at large.
Other jurisdictions have taken their own legislative approaches to the issue of violence in sport. For example, a large number of American state jurisdictions have taken specific steps through legislation to punish the player, coach, or spectator who assaults a sports official .
The work does not stop here. Each individual sport organization has a responsibility to take steps to deal with violence in their own programs and within their own jurisdictions. The courts have acknowledged that coaches have a responsibility for directing training and competitive activities. On his or her own, the coach has the greatest potential to influence behaviour and attitude ‘on the field’. But, the organization has the ultimate responsibility to ensure the right values – the values the organization has adopted – are reflected in the actions of coaches, officials, athletes, parents, spectators and other participants in the organization’s programs.
One of the greatest challenges here is ensuring that values are reflected consistently. For example, far too often we see a sport program or team promoting itself as being all-inclusive and developmental, and yet, when the championship game looms on the horizon, the team reverts to a more aggressive and competitive ‘win at all costs’ model, either as a result of coaching style or as a result of pressure from parents or players. Another area where there is often inconsistency is within the internal rules of the organization. A dramatic example of this can be seen in hockey where a number of leagues impose a suspension on any coach who removes a team from play, and yet there have been times when a responsible coach has felt a compelling need, for safety reasons, to remove a team from a particularly violent or mismatched game.
This brings me full circle back to the 9-year old boy’s lawsuit against an opposing team’s coach. Whether you agree or disagree with the allegations, what’s conspicuously absent from this picture is the local minor hockey association responsible for this boy, his parents, his team, and this coach. How did this matter get this far? The association could have, and should have, had mechanisms available to deal with this conduct, and should have implemented them in a timely and firm fashion.
 McMurtry, William R., Q.C. (Commissioner), 1974. Investigation and Inquiry into Violence in Amateur Hockey. Ministry of Community and Social Services, Government of Ontario.
 These reasons include (1) the influence of professional hockey with its emphasis on winning and use of violence as a tactical instrument to achieve that goal; (2) a rule structure (in professional and amateur hockey) which not only tolerates violence but encourages its use by rewarding those who excel in physical intimidation -- it also makes reciprocal violence inevitable; (3) lack of any proper definition of the purpose and objectives of amateur hockey, with its own model and rule structure; (4) failure of referees to apply existing rules, and inconsistency and lack of support for referees from fans, coaches and players; (5) failure of coaches to control players, and an emphasis on winning games rather than instilling the true value of sport and developing skills; (6) a lack of respect of players for rules and officials; and (7) undue pressure from parents, fans and coaches with over-emphasis on winning.
 Charles H. Tator, James D. Carson and Robert Cushman, (2000) "Hockey Injures the Spine in Canada, 1966-1996" Canadian Medical Association Journal. 162(6) p. 787-788
 Assault is distinguished from a charge of criminal negligence where the likelihood of harm is disregarded. Mr. Justice Gonthier. in R. v. Jobidon (1988) 45 C.C.C. (3d) 176, 67 C.R. (3d) 183, 30 O.A.C. 172 (Ont. Dist. Ct.) distinguished the two criminal activities this way: "The conscious regard for some level of harmful consequence to the physical integrity of another person distinguishes assault from criminal negligence, where there is actually a disregard for the likely impact of one"s conduct on the other"s physical safety."
 The Supreme Court recognized the purpose of the Criminal Code is to protect the public and stated quite clearly that there was no public policy initiative served by fighting.
 The courts have described various standards of consent: R. v. Maki (1970) 3 O.R. 780; 14 D.L.R. (3d) 164 (Prov. Ct.) defined it in terms of the degree of violence - "malicious, unprovoked, overt use of violence"; R. v. Maloney (1976), 28 C.C.C. (2d) 323 (Ont. Co. Ct.), players consent to the risks that are inherent and incidental to the game including where the body contacts board and possibly in fights where both players consent to the fight; R. v. Leyte (1973), C.C.C. (2d) 458 (Ont. Prov. Ct.), in competitive sport a player is deemed to consent to hits occurring in many ways so long as the reactions of the players are instructive and closely related to the play whether or not a foul is committed".
 R. v. Leclerc (1991) 7 C.R. (4th) 282, 4 O.R. (3d) 788, 67 C.C.C (3d) 563, 50 O.A.C. 232 (C.A.)
 R. v. Cey (1989), 48 C.C.C. (3d) 480,  5 W.W.R. 169, 75 Sask. R. 53
 R. v. Ciccarelli (1989), 54 C.C.C. (3d) 121 (Ont. Dist. Ct.)
Within the professional sport context, athletes are loathe to use this avenue of recourse, particularly, and understandably where the athlete remains an active participant. Peer pressure, fears of retaliation, and the possibility of parties becoming team-mates at some point in the future all mitigate to make the chances of a civil suit, at least against another player, remote. This is not so much the case in the amateur ranks, particularly where the purpose and philosophy underlying the competition differ from professional sport.
 The four elements of negligence are: a duty of care is owed; the duty imposes a certain standard of care; an injury or damage occurs and, the damage or injury is as a result of a breach in the standard of care.
 Black"s Law Dictionary in definition of the maxim demonstrates that certain criteria must be met for consent to be valid. This is the basis of the whole concept of a "waiver". Black"s describes the maxim as follows: "if one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom".
 Dunn v. University of Ottawa (1995) Ont. Ct. of Justice (Gen. Div.). Unreported. OJ 2865
 The Court in the civil case Unruh v. Webber quoted hockey related injury statistics kept by the Canadian Sports Spine and Head Injury Research Injury Centre at the University of Toronto. Between 1975 and 1987 that Centre documented 107 spinal injuries, 99 percent of which occurred in organized games, 87 percent were injuries to the neck and 81 percent came as a result of the injured player hitting the boards.
 Hamstra v. British Columbia Rugby Union (1989) 1 C.C.L.T. (2d) 78 (B.C.S.C.)
 Dyck v. Manitoba Snowmobile Association (1985) 1 S.C.R. 589; affg. (1982) 4 W.W.R. 318, 21 C.C.L.T. 38, 136 D.L.R. (3d) 111 (Man. C.A.)
 Burch, H.A. (1991). The Why’s of Social Policy. NY: Praeger
 In 1994 the Dartmouth Whalers Minor Hockey Association introduced a fair play program to reduce verbal and physical abuse in the game. This program has served as a model for a number of other programs throughout the country and includes player, parent and coach contracts, a "Rink Behaviour Policy" with posters warning arena spectators that they will be ejected for verbal or physical abuse, formalized coach selection processes, fair play team awards, junior officiating programs and a fair play support team.
 United Kingdom Sports Council submission to the United Kingdom Law Commission. (1994, July)
 Canadian Centre for Ethics in Sport Discussion Paper on Violence in Sport, (1999, February). Building a new brand of sport - what about violence?
 Cross, Troy (1998). "Assaults on Sports Officials". Marquette Sports Law Journal, Vol. 8 No. 2, 429-454.
Originally presented: Symposium "Sports Management: Cutting Edge Strategies For Managing Sports as a Business", August 2002, Toronto