Lex Sportiva: Thoughts Towards a Criminal Law of Competitive Contact Sport

Abstract

Competitive contact sport injuries can be, and often are, serious. Statistically, major injuries are inevitable due to excessive risk inherent in competitive contact sports. But at the end of the day, athletes generally expect to walk away from the field of sport in substantially the same condition as when they walked on the field of play. Purposeful or knowing strategic acts to cause grievous bodily injury for a competitive advantage is a different matter. Surely the criminal law applies to on-field misconduct the same as off-field misconduct.

The English Rule looks to evaluate mens rea but allows a high presumption of innocence for players acting within the rules and custom of the game. Under the American Rule players consent to risks inherent in the rules and custom of the game and so long as the rules are reasonable, there is no criminal liability for accidents, and injury is excused. Neither legal tradition nor the rules of the games adequately address strategic acts of criminal thuggery masquerading as legitimate sport.

The contemporary incidents reviewed in this article should spur thoughts toward developing a criminal jurisprudence to address intentional or reckless actions causing grievous bodily injury on the playing field. The goal of lex sportiva is that no athlete should have to suffer purposeful or knowing thuggish attacks masquerading as legitimate play. The law must catch up. This is inevitable. If it was inevitable that the Geneva Conventions would develop rules governing war beyond legitimate war aims, then a fortiori there must be a convention to develop rules governing competitive contact sport (simulated war) beyond legitimate sports aims.

Keywords: Sports, injuries, criminal law

JEL Classification: K14