Jack Anderson *

"I ain't never liked violence" Sugar Ray Robinson, five times Middleweight Champion of the World.

Introduction

A recent spate of disturbing hostility and violence in sport has once again posed the question as to the role of law 'beyond the touchline' 1 . Evidence of this despicable upsurge in disorder 'on the field of play' can be found across the Anglo-Irish sporting spectrum with October, 1997 being a particularly gruesome month. During this period, one had to suffer the disturbing scenes which followed the Antrim parish of Dunloy's victory over Lavey, Derry in the Ulster Senior Hurling Club Championship final at Casement Park, Belfast, where an angry mob of (victorious) Dunloy spectators, players and official swarmed the referee. 2 There was also the abandonment of a Munster Rugby Senior League match between Waterpark, Waterford and Bohemians, Limerick after a general fracas during the second half. 3 In the same month a settlement of half a million pounds was paid to Ian Knight, an ex-professional soccer player, for a horrendous tackle made on him during a fourth-round F. A. Cup replay in 1987 as a result of which his leg was broken in seven

places and his career ended. 4 Most tragically of all was the serious brain injury suffered by light-welterweight, Carl Wright, in a fight with Irishman Mark Winters in Liverpool. 5 This article will examine what role, if any, the law should have in regulating and sanctioning the above behaviour. However, before so doing there a few points of clarification which need to be made. First, for the sake of efficacy, this article shall deal exclusively with the effect and threat that the criminal law may have on such excessive 'sporting' endeavours. Secondly, while this article will outline in general terms the regulatory impact which the criminal law can have on violence, it is respectfully contended that the use of the criminal law against such contact should generally be resisted and primacy given to the internal disciplinary mechanisms of each sport. In short, I hope to demonstrate, by reference to authorities of jurisdictions such as the U. K., the U. S. and Canada, that the threat of criminal sanction for violent play will assist in averting its actuality and help to maintain a more Corinthian atmosphere to humanity's greatest pastime.

The Anglo-Irish Experience

As J. P. McCutcheon succinctly puts it: "Applications of force which would normally be criminal assaults are lawful when inflicted in the course of a game. The traditional explanation has been that the law recognises the consent of the participants as providing a defence." 6

To this effect, it is clear that the key to criminal liability's role in sport must be based on a discussion of the application of this broad principle of consent. The infamous prize-fighting case of R. v. Coney 7 reiterated the general rule applicable to the question of assault and consent i. e. that the application of the defence of consent is not absolute but rather is subject to qualification. In other words, while it has long been established that consent to force which is likely to result in bodily harm does not afford a defence, the courts will recognise lawfully constituted sports as an exception to this rule. Notwithstanding the above, all eleven judgments in Coney were also adamant that there were limits to the capacity of participants to consent to the imposition of such 'sporting' contact. To this end, Coney reaffirmed earlier decisions such as R. v. Bradshaw 8 and R. v. Moore 9 as regards the legal limits to which sports participants can consent to bodily harm within the course of their sport. (In fact it could be argued that Coney extended the principle first enunciated in these cases, by including non-fatal violence.) In the former case the accused during a football game struck an opponent in the stomach with his knee resulting in the eventual death of the opponent. Bramwell L. J. 's seminal direction to the jury is well held as the source of criminal law's involvement in sport:

"If a man is playing according to the rules and practice of the game and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury. But, independent of the rules, if the prisoner intended to cause serious hurt to the deceased, or if he knew that in charging as he did, he might produce serious injury and was indifferent and reckless as to whether he would produce serious injury or not, then the act would be unlawful. In either case he would be guilty of a criminal act and you must find him guilty; if you are of contrary opinion you will acquit him." 10 Given the evidence, the jury acquitted the footballer on the manslaughter charge after representation had been given by an umpire that no unfair play had occurred. Twenty years later in Moore a similar factual scenario led to a guilty verdict. Resonant of the judgment of Bramwell L. J., Hawkin J. directed the jury that "no one had a right to use force which was likely to injure another, and if he did use such force and death resulted, the crime of manslaughter had been committed." 11
Therefore, in summary, the above trilogy of cases imply that the criminal law's intrusion into the sporting sphere is founded on the basis that deliberate and/ or reckless tackling causing injury, particularly in breach of the playing laws of that particular game (although not necessarily so), prima facie creates an offence. This basic proposition has been implicitly reaffirmed in more recent cases. Beginning with the Court of Appeal decision of R. v. Donovan 12 where it was stated firmly that "If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime." 13 Such a principle was reiterated in the Attorney-General's Reference (No. 6 of 1980) 14 with the reminder that "nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports….( this being justified in the public interest)", 15 although clearly the contemporary case law is no less insistent that the inherent violence of sport cannot go unhindered. As Lord Lane C. J. emphasised in R. v. Lloyd, 16 "…. while forceful contact was allowed by the rules of Rugby Union (and semble the Law), the game was not a licence for thuggery." 17

Furthermore, Ireland has seen some development in this area of the law. In The People (D. P. P.) v. McCarthy 18 the accused was said to have kicked one opponent on the ground and punched another who had come to 'rescue' the latter. He was found guilty of common assault and, having paid the victim £5,000 compensation prior to sentencing, was fined another £50. Indeed, as McCutcheon points out, between 1987 and 1992 four other similarly based cases were referred to the Director of Public Prosecutions although none was concluded. 19
Finally, the most recent case where the position of sport viz the criminal law was discussed was R. v. Brown. 20 In Brown, where the law on consent was fully reviewed, the House of Lords confirmed that the existing law on the area indicated that whereas consent negatives liability for minor harm, the victim's consent does not provide a defence where actual bodily harm is intentionally or recklessly caused unless the case falls within a range of special 'socially acceptable' categories including lawful sports and games. Lord Mustill took the view that:

"Some sports such as the various codes of football, have deliberate bodily contact as an essential element. They lie at a mid-point between fighting, where the participant knows that his opponent will try and harm him and the milder sports where there is at most an acknowledgement that someone may be accidentally hurt. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. But he does not agree that this more serious kind of injury may be inflicted deliberately." 21

The present law, as stated by Lord Mustill in Brown, seems, to insist that no one can consent to serious bodily harm and the participant cannot therefore consent to the fact that he might be seriously injured. 22 This approach has been strongly questioned regarding its practical applicability to the nature of sport. In 1994, the U. K. Central Council of Physical Recreation (' C. C. P. R. ') similarly queried the above principle:

"This raises a crucial question for sport. Does a player who walks onto a pitch be it cricket, football or rugby, for example, consent to the fact that he may be injured but not to the fact that he might be seriously injured? Is it right that no-one can consent to the risk of serious injury? If a rugby tackle is made within the rules of the game (i. e. not too high and not too late) but nevertheless is an extremely hard tackle and the opponent sustains a serious injury as a result of the tackle, the question has to be, did the opponent consent to that tackle? Hard tackles in rugby are not only encouraged but applauded. Any player must, we submit, therefore consent to being tackled hard by walking onto the pitch. If we assume that the tackler did not intend to injure his opponent but did intend to tackle him as hard as he possibly could and if a court held that he applied more force than was strictly necessary and was therefore reckless as to whether his opponent was injured, (notwithstanding the fact that the rules not only permit hard tackling but actively encourage it) the tackler would not perhaps be able to rely on the defence of consent." 23

To this end, the C. C. P. R. argue that the line of lawful consent in sport should be drawn on the grounds of what they term the 'lawfulness' of the activity in question i. e. that a player consents to the risk of injury perhaps even serious injury, provided the rules of the sport in question are adhered to. This, the C. C. P. R. suggests, addresses the problem which arises in many sports where a particular skill of that game carries an almost unavoidable sense of risk, for example fast bowling in cricket. As the law stands a bowler who continues to bowl in this fashion and injures the batsman would be risking criminal liability given that the consent line is one of injury and not serious injury. However, if the line was drawn at 'lawfulness' the batsmen would been seen to have consented to the risk of injury, even serious injury, provided the bowler was bowling within the rules and also what one could term the 'spirit' or 'culture of the game i. e. what was an accepted and expected part of the game.

I agree with the above sentiments. The criminal law should be wary of interfering 'beyond the touchline' and when it does so, as it clearly must from time to time, it should do so from the proper perspective i. e. the norms and values of that sport. It is respectfully submitted that the essential (and practical) problem for the law as it now stands is, that in assessing whether the player's conduct is criminal, conformity to the rules of the game is merely persuasive in nature. This is clearly wrong and to be avoided for it may result in an undesirably interfering role for the criminal law in sport, paradoxically threatening the spontaneity, the athleticism and genuine competitiveness that it seeks to protect. As the C. C. P. R. put it simply and conclusively in its reply to the U. K. Law Commission report of 1994: "If the courts are to decide whether an activity is lawful by means of objective criteria and not by means of the rules of a particular game, then there is also a danger that the offending player would not be tried by reference to what was acceptable to his sport but by reference to the opinions on the sport in question by a judge and jury who may never have played his sport." 24

True and considered justice demands otherwise.

The Comparative Experience

(a) The United States Ever since President Theodore Roosevelt threatened to ban American college football at the beginning of this century on the grounds of excess violence and intimidation, the US authorities have recognised that from time to time during sports events, the restraints of civilisation are liable to be left on the sidelines. Indeed, there can be little argument that in the U. S., as in the U. K. and Ireland, there is nothing inherent in the nature or value of sport which should insulate it, or its athletes, from the general penal sanctions of the criminal law.

That being said, as in the U. K., the most difficult question facing U. S. sports jurists is to what extent, if any, the accused can defend themselves on the basis that the injured person has consented to the injury by voluntarily engaging in the sport. Again, as in the U. K., the line at which 'sporting' consent is breached is unclear. 25 Weistart and Lowell 26 suggest that in the absence of direct U. S. authority, consent will be a defence to criminal charges arising from a sports injury so long as the conduct in question can be regarded as a 'reasonably foreseeable hazard' of the sport. 27 This begs the question of how one is to determine 'reasonably foreseeable hazards'. Weistart and Lowell forward the interesting, if not intellectually satisfying, observation that "… the limitation on the consent defence must, in the final analysis, rest upon the general demands of the public." They add that "in the sports situation, this would suggest that one must articulate the point at which the public would no longer condone violence on a sports field." 28 With this in mind, it seems, given the sparse jurisprudence on the area, that the U. S. public has a relatively high tolerance of violence in sport or at least has quite a reluctance to see the criminal law interfering with sport. Indeed, in the most celebrated case in this area, the Forbes-Boucha affair of 1975, 29 the first criminal prosecution of a professional athlete in the U. S. was dismissed, somewhat surprisingly given the evidence, owing to a hung jury. The action was brought by the State of Minnesota against hockey star David Forbes who during the course of the hockey game in question was penalised along with his opponent Henry Boucha after a minor altercation. Immediately after the expiration of the penalty, Forbes lunged at Boucha and struck him from behind with the butt end of his stick, hitting him near the right eye. Boucha fell and was promptly set upon by Forbes. Boucha was subsequently taken to hospital receiving twenty stitches to his face and the first of many eye operations. After a complete trial, the jury was unable to reach a verdict and the prosecutor eventually dropped the charges of aggravated assault with a dangerous weapon. 30 The increasing public concern about violence in sport (especially regarding ice hockey) did, however, continue in the U. S. throughout the late 1970s. 31 Indeed, it was underscored by the introduction of the Sports Violence Bill into the U. S. Congress in 1980. 32 The aim of the Bill was to make it a federal crime for a player in a professional sports event to knowingly use excessive force and thereby cause a risk of significant bodily injury to another person involved in the event. Such conduct was to have been punishable by a fine of not more than $5000 or imprisonment for not more than one year, or both. The bill, which was forcefully opposed by the commissioners of all the major U. S. sports leagues, was never enacted.

The primary motive behind the Bill was that the existing laws did not deal adequately with the special legal circumstances presented by violence in sport. However, as Weistart and Lowell bluntly state "It is not entirely clear that this was, in fact, the case. While it may be true that there have been few convictions of sports figures under local criminal laws, this may not be due to technical inapplicability. Rather, it may be due to the absence of a level of popular outrage that would require prosecutors to seek indictments of persons who are believed to have caused severe injuries in sports events, or to convince a jury that a crime has been committed." 33 Weistart and Lowell conclude that, notwithstanding the honourable motives behind the proposed legislation,

"... the language of the Act was vague and general, as is probably inevitable in such a provision, so that it was unlikely that it would provide any real guidance. It is not clear that the average professional athlete would be able to translate such terms as 'excessive physical force' or 'risk of significant bodily injury', even as defined in the Act, into norms of conduct for sports events." 34

This remains the crux of the matter, regardless of the jurisdiction. The emotions of the competitive, motivated athlete on the field of play will always be difficult to reconcile with the objective, sober atmosphere of the courtroom. Admittedly, while this has not stopped certain jurisdictions (especially Canada) from availing quite regularly of the criminal law to deal with such violence, it seems that in the U. S. it remains very much up to the individual to initiate civil proceedings to gain relief in these circumstances. On the whole therefore, the U. S. example is of little use in this criminal sense, the lack of precedents demonstrating a marked reluctance to use this rather paternalistic arm of the law. This has not however, caused its neighbouring jurisdiction to show similar reticence. Indeed, Canada is arguably the leading light on criminal sports jurisprudence.

(b) Canada 35 In 1976 a report by a Select Committee of the United States House of Representatives 36 hinted at what Barnes calls "the distinctively Canadian contribution to the law of sports..." 37 by noting the number of criminal prosecutions of athletes, especially hockey players, for in-play acts of wanton violence. Indeed, it must be admitted that unlike the U. S., Canada has a long and robust history of viewing criminal prosecutions as a useful mechanism of dealing with violence in sport, particularly as regards ice hockey, its national sport.

The most notorious case took place in 1969 during an ice hockey game between the Boston Bruins and the St. Louis Blues. In the course of this exhibition game Wayne Maki (Blues) and Ted Green (Bruins) engaged in a skirmish behind the Boston net, during which Green hit Maki with his glove. After a delayed penalty was ordered, Maki apparently retaliated by 'spearing' Green in the stomach with his stick. Green replied in kind, swinging his stick at Maki's shoulder. Maki ended the fracas, which lasted all of ten seconds, by crashing his stick onto Green's head, the result of which was the insertion of a steel plate into Green's cranium. Subsequently the Ontario authorities brought criminal assault charges against both players. While both were ultimately acquitted, primarily on the grounds of self-defence, 38 the judgements in the decisions also gave considerable attention to the issue of the 'consent defence' to the charge of 'sporting' assault. In R. v. Green, 39 for example, the judge noted that "no hockey player enters onto the ice of the National Hockey League without consenting to and without knowledge of the possibility that he is going to be hit in one of many ways once he is on that ice." 40

However, given the above the judge was quick to acknowledge: "One now gets the most difficult problem of all…: since it is assumed and understood that there are numerous what one would normally be called assaults in the course of a hockey game, but which are really not assaults because of the consent of the players in the type of game being played, where do you draw the line? It is very difficult in my opinion for a player who is playing hockey with all the force, vigour and strength at his command, who is engaged in the rough and tumble of the game, very often in a rough situation in the corner of the rink, suddenly to stop and say "I must not do that. I must not follow up on this because maybe it is an assault ; maybe I am committing an assault." I do not think that any of the actions that would normally be considered assaults in ordinary walks of life can possibly be, within the context that I am considering, considered assaults at all." 41 Nevertheless, the court was left in no doubt that not alone were these comments directed specifically to the facts laid before it but that under no circumstances would such 'sporting consent' be permitted to justify "unprovoked savage attacks in which serious injury results". 42 In almost exactly similar terms, the court in R. v. Maki 43 reiterated the above principle when it opined that "all players when they step onto a playing field or ice surface assume certain risks and hazards of the sport and in most cases the defence of consent … would be applicable." But it acknowledged that there is a question of the degree involved and that "no athlete should be presumed to accept malicious, unprovoked or overly violent attack." 44 Moreover in Maki the trial judge was at pains to emphasise that if the fact situation in this case had been such that no doubt was raised regarding self-defence, he would not have hesitated to convict the accused and the defence of consent would have failed. Therefore, it is clear that the decisions in Maki and Green lend themselves to the conclusion that all players when they step 'beyond the touchline' assume certain risks, risks which are deemed reasonably foreseeable aspects of that sport. It follows therefore that criminal liability will attach itself to acts which, on the facts, resulted from the conduct of a player acting in a manner which can only be described as being intentionally and/ or recklessly malicious, unprovoked or overtly violent, no player being presumed to accept or consent to such potentially injurious behaviour on the field of play.

Recently even greater clarification of the criminal laws approach to violence in sport has been enunciated in Canada, particularly in R. v. Cey. 45 In this case the accused body-checked his opponent into the boards surrounding the ice-rink, inflicting facial injuries and concussion on that opponent. At first instance the accused was acquitted on the classic principle that as he had not intended to cause injury greater than that which was customary for the game, the consent of his opponent in such circumstances had not been breached. Surprisingly the Saskatchewan Court of Appeal overturned the acquittal and ordered a retrial. While the appellant court agreed that the consent given in sport is an exception to the general rule that consent to force which is likely to result in bodily harm is not normally a defence, 46 they argued that such exceptional, implied consent should be clearly determined on a number of objective criteria based on the conditions under which the game was played.
The court attempted to clarify the vagueness of the earlier approach by providing that in future the consent of sports participants should be recognised by reference to a number of specific factors such as the nature and standard of the game played, the nature of the act from the point of view of the degree of force and harm inflicted and the state of mind of the accused. This Cey principle has subsequently been followed in Canada, most notably in R. v. Ciccarelli 47 where the accused, Dino Ciccarelli, was convicted of assault for his part in an incident which took place on January 6, 1988 in a National Hockey League game in Toronto. 48 Indeed, it must be agreed that the objective nature of the above approach is at last an admirable and concrete effort to deal with this issue, especially when compared to the case by case approach previously applied in the courts as based on that which is customary or expected to happen in the course of a game. Not alone is the uncertainty of the earlier precedence removed but the emphasis is placed more firmly, and quite rightly, on the violence of the conduct rather than the (apparently necessary) permissiveness of the game. As McCutcheon sums up "where the conduct is such as to carry a high risk of injury it will be unlawful regardless of consent or of the frequency with which it occurs in the sport." 49

However, in R. v. Leclerc 50 the Ontario Court of Appeal while acknowledging the Cey principles, critically added the criterion of the extent to which the rules and/ or spirit of the game in question allowed for such conduct. In this case, inevitably arising out of an ice hockey game, the 'junior' rules were such that bodily contact was forbidden. The trial judge held, however, that the blow struck was an instinctive reaction and in no way could it be considered as a violent attack. It was felt that such a blow would be expected and accepted by all players as being within the unwritten spirit of the game. In conclusion therefore, Canada has a wealth of experience and precedent regarding sport and the law. In the mid 1970s the success of strategic violence in ice hockey 51 forced it to acknowledge the positive if reluctant role which the criminal law can have in tempering such unwanted and unnecessary behaviour. Similar to the U. K. however, there is some debate on the approach that the law must take in these situations and the argument between the merits of the objective approach of Cey and the more inclusive one hinted at in Leclerc remains open. Despite this, the willingness of the Canadian authorities to implement criminal sanctions is welcome, as is its acknowledgement that while sport can never be given an uninhibited licence to endorse outright brutality, the physical, competitive and spirited nature of the game ought, and has to be preserved.

Conclusion

"... when you scratch the skin of the civilised man the savage bleeds." William Golding, Lord of the Flies.

In essence, the criminal law's approach to violence in sport is quite similar throughout the examined common law world. Its principal weapon is that of the law of assault, as determined primarily by the concept of consent, with the general rule being that consent for the purpose of that law of assault cannot be given to the infliction on oneself of a serious degree of bodily harm. All of the above jurisdictions are of similar agreement that this slightly paternalistic rule is subject to several exceptions of which lawfully constituted games and sports are one.

Equally, they recognise that this exception does not present sport with a license to endorse acts which are clearly, excessively and maliciously violent. Where the debate lies, however, is the manner the courts must employ to determine when this line between what is acceptable as sport and what is untenable as crime, is breached. Some jurists prefer the objectivity of the Cey principles; others argue, with some force, that such a measured approach is out of place on the sportsfield. Still more jurisdictions are reluctant to use criminal sanctions at all, while many remain unsure, deciding on a case by case basis. Unarguably one factor is common to them all: in the words of Grayson "… the magic the fun within sport will always need the harmony between sport and the law, on and off the fields of play, to prevent the music and romantic joy which sport brings to the health and education of society at all levels from descending into barbaric depths to which so many participants, agents, administrators and thoughtless commentators would direct its destruction." 52 In a game of two halves can the law prevent sport from scoring a highly embarrassing and irreparably damaging 'own' goal of violence and aggression?


* B. A. Law and European Studies, Part-time Assistant Lecturer in Law at University of Limerick, currently pursuing an LL. M. (research) provisionally entitled "Legal Liability in Sport." 1
The phrase was first used by the English barrister Edward Grayson, now President of the British
Association of Sport and the Law. He has written extensively on the area notably Sport and the Law (Butterworths, London, 2nd ed. 1994).
2 O'Brien, J 'G. A. A. 's dilemma as mob rule invades pitch' The Sunday Tribune, 12 October, 1997.
3 Fanning, B 'Biting Incident leads to mass brawl' The Sunday Independent, 19 October, 1997.
4 McCann, E 'Unknown triumphs of Wilde man of sport' The Sunday Tribune, 19 October, 1997.
5 Breheny, M 'Defence of the realm' The Title, 19 October, 1997.
6 J. Paul McCutcheon 'Sports Violence, Consent and the Criminal Law' (1994) 45 N. I. L. Q. 267.
7 (1882) 8 Q. B. D. 534, as discussed by Neil Papworth 'Boxing and Prize Fighting: The Indistinguishable Distinguished? ' (1994) 2 Sport and the Law Journal 5.
8 (1878) 14 Cox C. C. 83.
9 [1898] 14 T. L. R. 229.
10 R. v. Bradshaw supra n. 8 p. 85.
11 R. v. Moore supra n. 9 p. 229.
12 [1934] 2 K. B. 498.
13 Ibid at p. 507.
14 [1981] Q. B. 715.
15 Ibid., p. 719.
16 [1989] Crim L. R. 513
17 See also the remarks of Lord Lane in R. v. Johnson (1986) 8 Cr. App. R. 343, 345 where he
remarked that "unlawful violence …. on the football field needs discouraging as much as violence on the terraces or indeed anywhere else."
18 Dublin Circuit Court, 20-22 October 1987.
19 J. Paul McCutcheon 'Sports Violence, Consent and the Criminal Law' (1994) 49 N. I. L. Q. 271. A similar assault case, this time concerning an 'off-the-ball' punch in a gaelic football match in Meath, failed in the Navan District Court in June, 1997, see The Irish Times, 26 June, 1997.
20 [1993] 2 W. L. R. 556.
21 Ibid at p. 592-3
22 See also the support this approach has received in the UK Law Commission's Consultation Paper dealing, inter alia, with violence in sport entitled; 'Consent and Offences Against the Person, Consultation Paper No. 134. ' This report was published on February 23rd, 1994 and is reviewed in detail by Farrell, R Violence in Sport and Consent to Injury' (1994) 2 Sport and the Law Journal 1; Singh, K 'Consent to Violence in Sport' (1994) 2 Sport and the Law Journal 7 and Radley, A 'A Study of Consent to Violence in Sport with Particular Reference to the Law Commission Paper No. 134' (1994) 3 Sport and the Law Journal.
23 'The Law Commission: Consultation Paper No. 134 Criminal Law -Consent and Offences against the Person; A Response on the Issues for Sports and Games' by the Central Council of Physical Recreation, submitted by Peter Lawson, General Secretary, (1995) 3 Sport and the Law Journal 4.
24 Ibid., p. 6.
25 The consent defence is discussed in detail by Binder 'The Consent Defence: Sports, Violence and the Criminal Law' (1975) 13 Am. Crim. L. Rev. 235. It is interesting to note that in the course of this article, at p. 242, the defence is criticised as being "a blunt instrument incapable of separating the abusive from the desirable aspects of the sport."
26 Weistart J. and Lowell C., The Law of Sports, (The Miche Company, Virginia, 1979.)
27 Ibid., p. 186-7, as based on s. 2.11( 2) of the Model Penal Code (1962). See also Glanville Williams 'Consent and Public Policy' [1962] Crim. L. Rev. 74.
28 Op. cit., n. 26, p. 186. They do admit however that 'this is obviously a less than certain inquiry and there is very little authority that can be consulted for guidance. ' See also Hughes 'Criminal Law-Defence of Consent-Test to be Applied' (1955) 33 Can. B. Rev. 88.
29 No. 63280 (1975, Minnesota District Court)
30 See Kennedy 'A Non-decision Begs the Question' Sports Illustrated, 28 July 1975.
31 Witness, for example, the Select Committee on Professional Sports, US House of Representatives, Final Report 'Inquiry into Professional Sport' (Washington, D. C.: U. S. Government Printing Office, 1976) and in the same year the case of State v. Freer (1976) 86 Misc. (2d) 280.
Ninety-Sixth Congress, H. R. 7903, 2d Sess. (1980).
33 Loc. cit. n. 23 above at supplement (1985) p. 37. Moreover, many individual states do recognise and provide by legislation for such circumstances. For example, Iowa law (Iowa Penal Code s. 708.1) provides that an act is not an assault when the parties are "voluntary participants in a sport… and does not create an unreasonable risk of serious injury or breach of the peace….". Indeed, a practical application of this can be found in State v. Floyd (1991) 446 N. W. 919.
34 Loc. cit., n. 23 above at supplement (1985) p37.
35 See generally Barnes J., Sport and the Law in Canada, (2nd ed, Butterworths, Toronto, 1988),
especially chapter 5 at p. 81 et seq. and also White, 'Sports violence as criminal assault; the development of doctrine by Canadian Courts' [1986] Duke L. J. 1030.
36 Select Committee on Professional Sports, US House of Representatives, Final Report 'Inquiry into Professional Sports', (Washington D. C., US Government Printing Office, 1976), p. 126.
37 Op. cit., n. 35, p. 81.
38 In that there was at least a 'reasonable doubt' about whether Green or Maki had used more than proportionate force in self-defence, see for example R v. Green (1970) 16 D. L. R. (3d) 137, 142-3.
39 (1970) 16 D. L. R. (3d) 137.
40 Ibid, p. 140.
41 Ibid.
42 Ibid., p. 143.
43 (1970) 14 D. L. R. (3d) 164.
44 Ibid., p. 168.
45 (1989) 48 C. C. C. (3d) 480.
46 Thereby endorsing the U. K. principle found in Attorney-General's Reference (No. 6 of 1980) [1981] Q. B. 715, 719 (Lord Lane C. J.) that "…. in our judgement it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/ or caused. Nothing which we have said is intended to cast doubt upon the legality of properly conducted games and sports….( this being justified in the public interest)….". This principle was reaffirmed by the Supreme Court of Canada in R. v. Jobidon (1991) 66 C. C. C. (3d) 454.
47 (1989) 54 C. C. C. (3d) 121.
48 Ciccarelli was sentenced to one day in jail and a $1000 fine. The case was cited with approval by Lord Mustill in R. v. Brown [1993] 2 W. L. R. 556, 592-3 and in the U. K. Law Commission's Consultation Paper No 134 on 'Consent and Offences Against the Person', par 10.15, see fn. 22 above.
49 J. Paul McCutcheon 'Sports Violence, Consent and the Criminal Law' op. cit., p. 267.
50 (1991) 67 C. C. C. (3d) 563.
51 See Barnes J., Sport and the Law in Canada (2ed, Butterworths, Toronto, 1988) p. 97 regarding the success of the brutal Philadelphia Flyers franchise in the Stanley Cup of the 1970s.
52 Grayson, E. Sport and the Law (2nd ed., Butterworths, London, 1994) p. xvi.

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