Above the law

By Scott Carpenter
web posted March 6, 2000

Marty McSorley's recent assault on Donald Brashear during a hockey game in Vancouver brings to light some interesting questions and facts about the NHL and the way we view professional sports in general. Perhaps the most important question is born from the issues of conduct and jurisdiction. In short, what level of physical rough and tumble do we call acceptable and when does a player cross the line between a little bump and grind and assault? Moreover, when a player does cross the line between what is and what is not a part of the game whose job is it to see that justice is done?

Lovers of the game (I was both a fan and a competitor for years) are divided on the issue. Many see the dirty tricks and stunts that some players pull as simply a part of the game. They say "If you can't take the heat get out of the kitchen!" Others are a bit more moderate in their stance. Some fans see the conduct that players like McSorely emulate as reprehensible but at the same time believe that these matters should be handled internally by the NHL. Apparently (at least according to many news pieces on this last incident) many of the NHL brass agree. They feel that they are able to dispense punishment on their own terms and that in fact the matter is of no concern to the general public or the courts. Of course, there is also the extreme opposite stance on this issue. Some people, mostly those from outside of the sport, feel that there should be no body contact at all. There is obvious conflict here but who is right?

What this issue essentially boils down to is a matter of rights and justice. When a player signs a contract to play this game he or she expects to be engaged in a certain degree of rough, physical play. Body contact is, after all, an integral part of the game. Anyone who has played knows that the physical aspect of hockey is part of what makes it exciting, fast and difficult. Checking your opponent can not be considered assault because each player signs on the dotted line with the understanding that it is part of his or her job and that the body contact, while physically demanding, is not meant to inflict pain (although from time to time it does) but rather is meant to slow ones opponent down or stop him in his tracks. More to the point is that palyers respect the contract between them and accept this Œroughness' as part of their jobs. While this might seem barbaric to some it is each players own life to do with as they please and as the old saying goes: "To each his own."

Fighting can be viewed in much the same manner. Although there is not a written contract a public fight requires one important thing: consent between individuals engage in some form of combat. If there is no consent there is no fight, only an assault. If we are to take seriously each man's right to his own life then we have to accept that each man (if he and his enemy consent to combat) has the right to waste his life (or risk a few broken bones) in a fight or for that matter in a duel (so long as this confrontation harms NO bystanders). On a more serious level, the right to fight or duel causes many a man who's manners would otherwise be obnoxious, from acting like an ass in public. As 18th century English philosopher, Bernard Mandeville, wrote in his novel The Fable of the Bees:

Nothing civilizes a Man equally as his fear, and if not at all, (as Lord Rochester said) at least most Men would be Cowards if they durst: The dread of being call'd to an Account keeps abundance in awe, and there are thousands of Mannerly and well accomplish'd Gentlemen in Europe, who would have been insolent and insupportable Coxcombs without it. Besides if it was out of fashion to ask Satisfaction for Injuries which the Law cannot take hold of, there would be twenty times the Mischief done there is now.

Ultimately, the chief means of deciding the difference between a duel or "fair fight" and an assault is consent. Each player consents to being checked and rubbed into the boards. To this date I have never seen a fight erupt on the ice where each man did not consent to the fisticuffs that followed. The fact that this behaviour is a little on the knuckleheaded side is irrelevant. There is no victim so there is no crime.

However, McSorely's situation is different. While the two men had been "at" each other for most of the game, the attack that McSorely perpetrated on Brashier was unprovoked and more importantly there was no element of consent even remotely present. In fact one could safely say that Brashear was completely taken by surprise as McSorely literally snuck up behind him and slashed him across the face with his stick. Brashear was out before he even knew he'd been hit. This was, by every means of the definition, an assault.

But what's more disturbing than McSorely's assault on Brashear is the manner in which this whole event has been dealt with by the NHL. The upper brass are asking local law enforcement to stay out of it so that they can deal with the matter internally. As cozy as this may sound to some fans and the bureaucrats that run the NHL this is the moral equivalent to my cousin beating my son and me requesting that the police stay out of it because "it is a family issue that the state need not concern itself with."

When justice is subverted so that organizations may deal with matters of assault and other violations of person and property on their own then justice loses its purpose and meaning. Moreover government gives up its only proper place in our society; as the protector and guardian of individual rights. For the NHL to claim that this is an internal matter is to claim that they are above the law and thus not subject to the same standards of conduct that the rest of us are. Also, it subjugates the whole notion of rights and turns them into something that are granted and controlled by people with power as opposed to being the sole property of a sovereign individual.

In the end, a society which condones this type of behaviour from both individual players and from the league gives us an interesting look into the nature of the society itself. If we will condone a miscarriage of justice such as this in a very public forum what will we condone when there are no cameras turned on us to catch our words or our actions? Food for thought.

In the mean time I hope the Vancouver City Police and other concerned members of the law enforcement community have the guts to stand up to the political and financial power of the NHL and its cronies. Justice and human rights deserve no less.

Scott Carpenter is the editor of Liberty Free Press and a regular contributor to Enter Stage Right.

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