Should criminal law be used more often to police serious incidents of violence during a game at whatever level of sport it occurs? Or should these matters be left to sport itself and thus not waste precious police and public resources?
A number of high-profile incidents globally prompt answers on the criminal law’s reach beyond the sideline.
The first happened earlier this month in Australia during an AFL game in Perth between local rivals West Coast Eagles and Freemantle. Freemantle’s Andrew Brayshaw was caught full face by a swinging left fist from West Coast’s Andrew Gaff.
Brayshaw’s jaw was broken and several of his lower teeth displaced. Such was the damage caused that, on reaching the player, the physio ordered him not to take out his mouthguard.
The concussed, distressed player was then taken shakily from the field and straight to hospital for overnight surgery.
The following day Freemantle confirmed that, although the surgery went well, the player would not eat solids for a month and would miss the rest of the season.
Bizarrely, Australian Rules does not have a red card rule. Gaff remained on the pitch for the rest of the game and unsurprisingly retribution swiftly followed.
Immediately after the game, Gaff’s club and team-mates rallied to his defence.
A familiar array of mitigating excuses was given: Gaff had acted completely out of character; the players were good mates off the field; Gaff meant to hit Brayshaw in the chest; Gaff was now extremely upset and remorseful; and, it was said, he would accept whatever punishment the AFL decided to impose.
The AFL quickly gave Gaff an eight-week ban, which rules him out for the rest of the 2018 season, a year in which the West Coast Eagles have already made the play-offs and are among the favourites for the title.
Gaff was however extremely fortunate not to face criminal charges.
The punch was disproportionate, off the ball and resulted in serious damage. All the elements of a criminal assault were made out.
In Western Australia, where the incident took place, the state’s criminal code even has a provision that an assault can be classified as aggravated, and thus attracting a prison sentence, if it occurred in front of children. That aggravation would have been fulfilled here given the presence of many thousands of children at the game.
The police in Perth decided, however, not to act. It appears they did so because they felt that the sports-specific ban given to Gaff was a sufficient deterrent and that, in any event, Brayshaw had not pressed charges and had even indicated publicly that he would forgive his opponent.
Was eight weeks adequate for Gaff?
In a purely sporting sense, the length of the ban contrasted badly to the AFL’s official and (rightly) cautious policy on the long-term effects of concussion and head injuries among its players.
In comparison to other sports and in a country where three cricketers, including the national team captain Steve Smith, recently got banned for a year for tampering with the surface of a ball, Gaff’s sanction seems feather light.
The three cricketers also lost millions of dollars in personal sponsorship. Gaff may miss the rest of the 2018 season, but he will, by then, become a free agent and, in the prime of his career, it has already been hinted by leading Melbourne clubs that a bidding war for his services will take place.
More importantly, the reaction by the police to this sporting “King- Hit” is at odds with a recent nationwide debate in Australia on the need for specific criminal laws to deter a rise in so-called single punch fatalities among young, drunk males in street fights.
Moreover, in the context of a team sport where there is a (misplaced) ethos of “what happens on the field; stays on the field”, it seems disingenuous of the police to use Brayshaw’s reticence to approach them as an excuse not to pursue Gaff.
Brayshaw, 18, is only beginning his professional career. Although clearly a victim of an assault, he is desperate to realise his childhood dream and have a decade-long career at the elite level of his sport.
Regrettably, going to the police would have been going against the grain of Brayshaw’s sport (as it would be in many other codes).
It would also have been against the grain of Australian legal history.
Convictions for assault as a result of onfield violence are very rare in Australian (and Irish) sport and probably number less than a dozen in total.
Two of the most high-profile events include one involving an AFL legend. Leigh Matthews was prosecuted for a punch that broke an opponent’s jaw in a televised game between Hawthorn and Geelong in the mid-1980s. The conviction was overturned on appeal.
Last year in an amateur game in suburban Melbourne, an AFL player was sentenced to a two-year community order and a $5,000 (€4,312) fine after pleading guilty to recklessly causing injury to another by punching them in the face in an off the ball incident.
The accused happened to be a leading official in the AFL (its diversity manager). He promptly lost his job.
Although criminal law should always be the last resort for on-field violence, the lack of response by the police to the Gaff incident left many in Australia with the impression contact sports, especially the popular AFL code, have an immunity from the law.
In the Gaff incident, the fact the incident happened beyond the touchline seems to have acted symbolically to protect him from criminal charges and deter the police. It ought not to have, but it did.
Once the touchline is cleared and the players are off the field, there can be no doubt about the criminal law’s reach.
An example of that occurred in July in San Francisco when Samoa sevens international Gordon Langkilde was arrested for aggravated assault following a fight with opposition players after a defeat to Wales at the World Cup.
According to police, Langkilde assaulted two, or possibly three, Welsh players, who suffered facial injuries including broken noses and fractured cheekbones, during the alleged clash which occurred in the tunnel in the immediate aftermath of the game.
Wales player Tom Williams allegedly suffered tournament-ending injuries in the attack.
Langkilde remains in the US, separated from his young family, and facing a trial which is scheduled for this week.
In many states in the US, fans who invade the pitch or otherwise gain unauthorised access to the pitch can face criminal trespass charges. These security-related offences are taken seriously, give the public nature of sporting events.
On the same weekend as the Gaff incident earlier this month, an Irishman, David McClearn streaked during a MLB game between the Seattle Mariners and the Toronto Blue Jays.
He later said he did it for an $80 (€69) bet with friends. Under the applicable law, he could have faced a significant fine or even jail time or possibly deportation.
He struck a deal with the local district attorney and agreed not to appear at a Mariner’s game again, naked or otherwise.
There is no specific law to this effect in Ireland. Here, and especially in the GAA, keeping people off the pitch appears to be more about deterring potential civil claims for injury.
In the immediate aftermath of Limerick’s victory on Sunday, everyone thought Croke Park’s resolve to keep supporters off the pitch might be sorely tested. As is happens, the Limerick fans were happy to sing and linger with the Cranberries, elated by our long-awaited win.
We will be for a while yet. And there is no law against that.
Jack Anderson is Professor of Sports Law at the University of Melbourne.
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