Criminal Charges for Clean Hockey Hit? Magistrate Says No

Athletes are occasionally liable for torts committed during sporting contests. This has occurred most notably when players step outside the lines and exceed what is appropriate for play. In obscene instances, criminal charges may also surface. In one of the most famous hockey cases, for example, NHL player Marty McSorley was convicted of assault after smashing his stick into the head of Donald Brashear with only seconds remaining in a game.

Last week, the issue of criminal charges amid ordinary sports conduct reached prominence in the aftermath of a Massachusetts high school hockey game. The parents of Duxbury (Mass.) High senior Tucker Hannon pursued a criminal assault and battery complaint against Scituate (Mass.) High hockey player Alex Way after Way delivered a tough hit on Hannon. Although the referees maintained it was a clean hit and did not assess a penalty, Hannon nevertheless suffered a concussion and missed the remainder of the season.

The matter was heard on Friday before a Plymouth District Court magistrate. Hannon’s attorney asserted that “if this [check] was off the rink, on a public way, that is gross, negligent assault and battery.” In the end, however, the magistrate was unconvinced by such an argument. Finding no probable cause for the complaint, Clerk Magistrate Philip McCue said “I’m not going to sit here as a hockey referee.” Way, an honor student and three-sport athlete committed to attending Williams College in the fall, was apologetic and Hannon admitted that it seemed very genuine.

Although dismissed, this case brings to light a valid question, which is whether conduct in a contact sport should be viewed under a substantially different lens than ordinary public conduct. Robert Harnais, Way’s attorney, said it was a “travesty” that Friday’s probable-cause hearing was held and that it was “shameful to sports as a whole” that a non-penalized play from a contact sport was scrutinized in a court of law. The magistrate’s ruling and statements indicate that he tends to agree, leaving such decisions (at least at the onset) to referees. Way delivered a clean hit to the body, not the head, on a player actively involved in the play.

Despite the media’s attention to the Massachusetts Interscholastic Athletic Association, which reviews plays that lead to concussions, it did not appear that a special standard was applied based on the fact that this was a high school game and not a professional contest. “With or without a penalty called during the game, a criminal complaint [stemming from a high school play] is really unheard of,” MIAA spokesman Paul Wetzel said. This could theoretically change, however, if Duxbury seeks some sort of revenge when they face Way and the rest of the Scituate lacrosse team next week.

Should criminal charges ever surface for conduct in the ordinary course of sport? What if the referees see the play and do not even call a penalty or foul? Should different standards apply to high school or other amateur contests?

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