Winning Isn't Everything, It's the Only Thing. Violence in Professional Sports: The Need for Federal Regulation and Criminal Sanctions Daniel R. Karon* Introduction The National Hockey League (NHL) calls it high-sticking, but if Wayne Maki of the St. Louis Blues had acted as he did toward Ted Green of the Boston Bruins anywhere except on the ice, it would have been called battery. During a September 21, 1969 hockey game, Maki struck Green in the face with his hockey stick. As a result of this attack, Green sustained a serious concussion and massive hemorrhaging and underwent two brain operations that were only partially successful. 1 This is merely one example of the many cases of egregious and excessive violence that take place in professional sports arenas. 2 Violence has become the rule and no longer the exception in professional sports. 3 Of course, some degree of violent contact is necessary in sports, but violence to the degree described above far exceeds this necessary level. Acts that are clearly criminal on the streets seem to be licensed if they take place within the context of a professional sporting event. 4 The purpose of this Article is to show that the level of violence currently existing in professional sports is intolerable and must be * B.A., Indiana University-Bloomington; J.D., The Ohio State University Col- lege of Law. The author wishes to thank Miriam E. Friedman, B.S.E., Indiana University- Bloomington; M.N.O., Case Western Reserve University for her insight and encour- agement in writing this Article. 1. Maki hit Green with his stick in a manner closely resembling a "logger splitting a stump." Green only regained partial sensation and "has never recovered 100 percent." Comment, It's Not How You Play The Game, It's Whether You Win Or Lose: The Need For Criminal Sanctions To Curb Violence In Professional Sports, 12 Hamline L. Rev. 71, 71 n.l (1988) [hereinafter Comment, How You Play The Game]. See also R. Harrow, Sports Violence: The Interaction Between Private Lawmaking and the Criminal Law 19 (1980) (citing You Hear Green's Name, You Recall That Night, Boston Globe, Jan. 24, 1979, at 19). 2. See Comment, How You Play The Game, supra note 1, at 71. See also Note, Controlling Sports Violence: Too Late for the Carrots—Bring on the Big Stick, 14 Iowa L. Rev. 681 (1989) [hereinafter Note, Controlling Sports Violence]; Note, Sports Violence as Criminal Assault: Development of the Doctrine by Canadian Courts, 1986 Duke L.J. 1030 [hereinafter Note, Criminal Assault]. 3. Comment, How You Play The Game, supra note 1, at 72. 4. 2 R. Berry & G. Wong, Law and Business of the Sports Industries 420 (1986) [hereinafter Berry]. 148 INDIANA LAW REVIEW [Vol. 25:147 curtailed. Part I explains the societal need for ridding professional sports of needless violence. Part II describes the four major sports leagues' attempts to rid their respective sports of excessive violence. Part III discusses the practical problems and hurdles a prosecutor faces when bringing criminal charges against a professional athlete for an act of on-the-field violence. Part IV describes the federal government's unsuccessful attempts at regulating sports violence through legislation. Finally, Part V proposes a federal statute that will adequately remedy the serious problem of sports violence. I. The Societal Need for Ridding Professional Sports of Violence Psychologists and sociologists recognize the problem of sports vi- olence and its negative impact on society. 5 This destructive societal effect and the effect violence has on the players are the reasons violence must be prohibited. A. Professional Athletes as a Role Model for Children Athletes serve as role models for our nation's children. 6 Professional sports have become so pervasive in our society that nearly everywhere one looks, one can expect to see some reference to professional sports. 7 The ' 'sports star" has been created as a result of this widespread exposure. 8 Children attempt to emulate those stars who excel in their particular sport. 9 If the emulated sports stars incorporate violence into their game, a child may display similar violence while playing Little League or while on the playground. 10 A prominent NHL defenseman of the 1970s, Bobby Orr, has even written an instructional book that teaches children that the most effective way to win a hockey game is to fight. 11 Professional sports' ambivalent approach toward violence encourages children to adopt the same disinterested attitude. 5. Note, Controlling Sports Violence, supra note 2, at 686. 6. Id. at 688. 7. See Bryant & Zillmann, Sports Violence and the Media, in Sports Violence 195, 206-07 (J. Goldstein ed. 1983). 8. Note, Controlling Sports Violence, supra note 2, at 689. 9. Silva, Factors Related to the Acquisition and Exhibition of Aggressive Sport Behavior, in Psychological Foundations of Sport 261, 269 (J. Silva III & R. Weinberg eds. 1984). 10. Note, Controlling Sports Violence, supra note 2, at 689 n.74. See Smith, Significant Others' Influence on the Assimilative Behavior of Young Hockey Players, 3 Int'l Rev. of Sport Soc. 45, 54 (1974). 11. B. Orr, My Game (1974). See Note, Controlling Sports Violence, supra note 2, at 689 n.78. 1991] SPORTS VIOLENCE 149 B. Injury to the General Public Two principal justifications of our nation's criminal law are that 12 it protects the public and supports notions of morality and ethics. Some argue that criminal law should not apply to acts of on-the-field violence because these acts do not threaten the public in the same way as violence that occurs on the streets. 13 Thus, criminal law's dual justifications will not be furthered by prosecuting the athletes involved. This argument, however, fails to address both of the criminal law's justifications. Although the general public is not physically harmed by viewing sports violence, spectators are nevertheless injured by having to view senseless violence—violence that is in direct contravention to the teachings of educational and religious institutions in this country. 14 That the violence occurred within the confines of a playing field or ice rink does not diminish the fact that violence has occurred and that the public has been subjected to viewing it. Accordingly, unless society's notions of morality and ethics endorse violence, these notions have been violated. The argument that sports violence does not implicate the justifications of our nation's criminal law is therefore misleading. Moreover, spectator violence is almost the exclusive result of on-the- field violence. 15 When spectators see their sports heroes act violently on the field, some fans seek to emulate those players. 16 II. League Attempts to Deal With Sports Violence A. League Disciplinary Rules All professional sports leagues have established internal rules, sys- tems, and procedures for dealing with violence in their respective sport. 17 These rules exist to avoid the entanglements of civil and criminal proceedings for violent acts that occur during a sporting event. 18 The leagues, however, fail to use their available controls effectively. The 12. Berry, supra note 4, at 420; Note, Controlling Sports Violence, supra note 2, at 687. 13. Berry, supra note 4, at 420; Note, Controlling Sports Violence, supra note 2, at 687. 14. Note, Controlling Sports Violence, supra note 2, at 687. 15. Id. See Engler, Violence in Sport, in Sports in Law: Contemporary Issues 180, 181 (H. Appenzeller ed. 1985). 16. Note, Controlling Sports Violence, supra note 2, at 687-88. 17. Berry, supra note 4, at 433. 18. Id. 150 INDIANA LAW REVIEW [Vol. 25:147 existing rules do not adequately redress the violence problem, and the leagues have resisted imposing significant rule changes to deal with their current rules' inadequacies. 19 The instruments of league control are players' standard contracts or collective bargaining agreements. 20 These agreements frequently con- tain a clause stating that the player agrees to be bound by the league's disciplinary rules. 21 Unfortunately, many professional sports contracts and collective bargaining agreements contain nebulous language that authorizes the league commissioner to discipline a player for acting in a manner contrary to the "best interests of the game." 22 As a result, 19. See Comment, How You Play The Game, supra note 1, at 72. 20. Berry, supra note 4, at 433. 21. Id. 22. The following are examples of this ambiguous language: a. National Football League's Standard Player Contract, clause 15: Integrity of the Game. Player recognizes the detriment to the league and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he ... is [found] guilty of any . form of conduct reasonably judged by the League Com- missioner to be detrimental to the League of professional football, the Com- missioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount, to suspend Player for a period certain or indefinitely; and/or to terminate this contract. Id. at 433 n.l. b. The Collective Bargaining Agreement between the National Hockey League and the National Hockey League Players Association, art. 15.01, "Intentional Injury," states: The Clubs shall promulgate on an experimental basis a rule requiring immediate suspension of any hockey player who receives a match penalty for intentionally injuring any other hockey player. Such suspension shall remain in effect until a determination with respect to the match penalty has been made by the President of the National Hockey League.