The holiday season can understandably be a distracting time. However, one piece of sports news recently flew under the radar that is perhaps the most outrageous shirking of responsibility I have ever heard.
By now, most sports fans have seen the brutal sucker punch that Boston Bruins forward Shawn Thornton laid on Pittsburgh Penguins defenseman Brooks Orpik during a stoppage in play on December 7.
After Orpik refused to fight Thornton, Thornton slew-footed Orpik to the ice from behind and then punched him twice in the face, knocking Orpik’s head into the ice. Orpik was knocked out cold and left the game on a stretcher. Orpik has since missed six games due to a concussion and might just have lost a massive free agent contract as the Penguins’ young guns have filled in quite well in his absence.
Meanwhile, Thornton received a match penalty and was ejected. The NHL then suspended Thornton fifteen (15) games. In my opinion, Thornton was lucky to not be suspended for the rest of the season.
Now here comes the outrageous part – Thornton thinks he did nothing wrong and is appealing his suspension. He potentially ended a guy’s career with a sucker punch and now will not accept his slap on the wrist punishment? Cue a “Come on man!”
In full disclosure, I am from Pittsburgh and love the Penguins. I also spent a year riding a cramped motel on wheels with Orpik’s younger brother, Andrew, when I was a broadcaster for the ECHL’s Las Vegas Wranglers. All bias aside, Thornton should accept his 15-game suspension with a smile, because there is a strong case for charging him criminally and holding him liable for massive tort damages.
In Massachusetts, according to Model Jury Instruction 6.140, in order to prove that the defendant is guilty of having committed an intentional assault and battery, the Commonwealth must prove three things beyond a reasonable doubt:
First: That the defendant touched the person of [alleged victim] ,without having any right or excuse for doing so; Second: That the defendant intended to touch [alleged victim]; and Third: That the touching was either likely to cause bodily harm to [alleged victim], or was done without his (her) consent
Pursuant to ALM GL ch. 265, § 13A, “Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.”
In this instance, it is clear that Thornton touched Orpik without having a right to do so (remember, this touching, unlike other NHL fighting, violated the league’s own rules), and the touching was done without consent and likely to cause bodily harm. If the Boston DA really wanted to, there could be a case for an assault charge as it would not be unprecedented in hockey. Think back to the brutal sucker punch by Vancouver Canucks forward Todd Bertuzzi in 2004 that led to Bertuzzi pleading guilty to assault in British Columbia. Charges against Thornton are not that far-fetched, considering the actions were quite similar.
Additionally, if Orpik cannot return to the ice, or misses out on cashing in during free agency, he could sue Thornton in civil court for the torts of assault and battery.
The seminal case in sports law textbooks for unwanted touching in professional sports is Hackbart v. Cincinnati Bengals, Inc. , 444 U.S. 931 (1979). Plaintiff Hackbart was a defensive back for the Denver Broncos. During a game against the Cincinnati Bengals in 1973, a pass was intercepted and returned to mid-field. As a result of the interception, plaintiff Hackbart and co-defendant Clark switched roles with Hackbart playing offense and Clark now playing defense. Hackbart attempted to block Clark by throwing his body in front of him, then remaining on the ground. It was found in the trial court that Clark, out of anger and frustration, [but without a specific intent to injure] struck a blow to the back of Hackbarts’s head and neck with his right forearm, while plaintiff was still kneeling. The blow was so severe that it caused both players to fall forward to the ground.
On appeal, the Supreme Court found that the rules and general customs of football specifically prohibit the intentional striking of a player in the face or from the rear. The Court felt that the restraints placed upon football players were intended to establish reasonable boundaries so that one football player cannot intentionally inflict serious injury upon the other. Therefore, the injured player should be allowed damages under tort law. Notably, the Court found that just because a plaintiff consents to participate in an event where violence is usual does not mean that the plaintiff consents to whatever acts are committed against him in the event – Much like Orpik in hockey. The rules are there so that one player cannot intentionally inflict serious injury to another. The plaintiff is entitled to an assessment of his rights and whether his rights have been violated. Accordingly, the trial court should look at the usual practices and customs of the game in determining tort liability.
Orpik could face more of an uphill battle in civil court, since fighting is allowed in the NHL unlike the NFL. However, it is against the league’s rules to sucker punch someone on the ice. Orpik clearly expressed that he did not consent to a fight, yet Thornton threw blows anyways.
No matter what shakes out in a criminal or civil court, one thing is clear – Thornton should not receive a lesser suspension on appeal and the NHL should do all it can to take dirty plays like this out of the game.