Jan. 28, 2016 (Mimesis Law) — It is a memory seared into the minds of many a baseball fan. In the lengthy list of highlights for the storied career of arguably baseball’s best pitcher ever, this performance certainly stands out. But unlike his record mark of 5,714 career strikeouts and 7 no-hitters, this particular highlight had very little to do with the actual game of baseball.
The Texas Rangers and Chicago White Sox had exchanged terse words and beanballs over the course of several seasons, and things boiled over on Aug. 4, 1993. Ryan, pitching for the Rangers in his 27th and final major league season at age 46, was a living legend. Ventura was a 26-year-old Gold Glove third baseman for the White Sox.
Ventura, batting fourth for Chicago, had singled to left in the first inning to drive in Joey Cora for the first run of the game. Ryan plunked the left-handed Ventura on the right triceps with the first pitch the next time he came to bat. Ventura took a few steps toward first base before suddenly charging the mound. Ryan got Ventura in a headlock and delivered several shots to Ventura’s head before both benches cleared and enveloped the two primary combatants in a wave of chaos.
Admittedly, watching the 46-year-old legend pummel his 26 year old aggressor was quite a sight. But the question that has never seemed to find its way into the telling and retelling of that extraordinarily one-sided bout was this: were any laws broken? Was that fight, and by extension all other fights that occur during sporting events, a criminal act?
Had Robin Ventura, instead of heading toward the mound, walked over to the railing and cold-cocked an usher, would his chances of facing arrest and prosecution would have increased significantly. As it happened though, he tried to assault another player. And even though his “try” was an unmitigated failure, he still broke the law. He attempted to assault Nolan Ryan, who taught the youngster a class on self-defense. But like so many other mound-chargers before and since, Ventura’s actions were never even considered to be criminal.
The law is not completely silent on the seeming immunity that covers players engaged in a sporting activity. Not silent but extremely quiet. The basic legal principle that keeps most violent players out of cuffs is the common law doctrine of consent.
Some crimes for which consent may be a defense include those that result in bodily harm, including assault and battery. In very limited circumstances, victims can be held to consent to these crimes. One common example is in physical contact sports. Participants in a sports game are deemed to have consented to the physical contact and possible bodily harm that is an essential element of their sport.
For example, if someone tackles a stranger in the frozen food section of Whole Foods, that would be assault. But when it occurs on the gridiron, players have consented to the tackling as an essential element of the game. Therefore, not assault. As it relates more closely to fighting, no sport provides a clearer example of this legal principle than boxing. The sweet science.
Boxing, and in fact all related combat based sports (martial arts, ultimate fighting, wrestling, etc.), has fighting as the essential element of the sport. Boxers score points for landing punches and can win the contest by hitting their opponent with such force that it knocks them unconscious. This happens in a ring with shiny shorts – legal. This happens in a bar right before closing – illegal. Although the element of consent exists in both situations, only the one sanctioned by a recognized sport provides a complete defense to prosecution.
But what about a sport that includes fighting, but it is not an essential element? Fights are an integral part of hockey in the same way that tea breaks are essential to the sport of cricket. But whether you agree that fighting in hockey is silly or you see it as a valuable part of the sport, it cannot be denied that hockey does sanction bare-knuckle fistfights.
The rules of hockey clearly state that if two players decide to stop a perfectly good game to throw fists at each other’s face while trying to remove each other’s shirt, once they wear themselves out or someone goes down, each player is penalized. Unlike court appearances, legal fees and the possibility of incarceration were the exact same thing to occur in the stands, hockey players who commit assault get sentenced to five minutes in ice jail. The penalty is far from severe, but there is no denying that justice is swift.
Although consent to sanctioned fighting turns assault into a legal hockey fight, immunity is not absolute. In a clear instance of the consent doctrine being inapplicable, take the February 21, 2000 assault by Marty McSorely of the Boston Bruins on Donald Brashear of the Vancouver Canucks.
After fighting and losing to Brashear early in the contest, McSorely sought revenge later in the game by trying to goad Brashear into another fight, which Brashear would have no part of. With time winding down, and his team significantly behind, McSorley skated towards Brashear from behind and slashed at his head with his stick. Brashear’s head smacked the ice, sending him into convulsions.
Although McSorley was suspended for the remainder of the season, he was still charged with assault. In a rare result, he was convicted of assault and sentenced to an 18 month conditional discharge by the court. So even in the rare instance of a conviction, the sentence is a far cry from what a commoner would receive for cracking someone’s skull with a stick.
But what about those sports where fighting is not even arguably a part of the game? What about the Robin Ventura’s of the sports world who simply attack another player? “Charging the mound” is a well-known phrase because of the ubiquity of upset batters attacking pitchers. But there is never any intervention on the part of law enforcement either during or after these assault (or attempted assault in Ventura’s case). A pitcher generally has not consented to fight the batter and baseball has no form of jail, ice or otherwise. Under our assault laws, every time the batter charges the mound and takes a swing at the pitcher, he is technically committing a crime.
Even after the final whistle blows, immunity seems to extend. The ever-popular pit stop brawl following a NASCAR race never sees even a whiff of arrest. If an athlete takes it too far and shocks the public conscience by putting another player in the hospital, then law enforcement may get involved. But most of the time, the discretion that we wish officers would exhibit a bit more frequently for people without a million-dollar jumpshot seems to shield athletes from legal consequence for their illegal actions.
To be clear, law enforcement is not ignoring public demands for these arrests. We seem to be fine with the occasional sports dustup, especially if it is the only interesting thing that happens during an otherwise boring game. Then again, no one was demanding millions of marijuana arrests over the past decade either. But teaching our children what the inside of a jail cell looks like is apparently more important than teaching them that it is not okay to attack someone for pitching inside.