Dirty Play, or Criminal Assault?

I don’t follow professional basketball very closely, but I was absolutely stunned by a play late in a recent playoff game between the Los Angeles Lakers and the Dallas Mavericks. The Mavericks, already leading the series 3-0, were ahead by 30 points in the final quarter of the fourth game. Dallas guard Jose Barea drove to the basket, and as he rose to the rim for a layup, Lakers center Andrew Bynum came across the lane and drove his elbow into Barea’s ribcage. Cheap shot doesn’t begin to describe it. Bynum did not attempt to make a play on the ball, Barea was completely stretched out and exposed, and after Bynum’s vicious blow, Barea collapsed in a heap on the floor. You can see the video here. (For a local comparison, it was much worse than the forearm strike by Gerald Henderson that bloodied Tyler Hansbrough’s nose in 2007.)

Bynum was ejected, and I assume that the NBA will fine and suspend him. But could and should he be prosecuted criminally?

There have been a number of criminal prosecutions arising out of violent conduct during the course of sporting events. At the professional level, Todd Bertuzzi of the Vancouver Canucks was charged criminally for an in-game assault of another hockey player that left the latter with a broken neck. At the amateur level, sexual assault charges were brought last year against a high school wrestler as a result of his use of the “butt drag” against a teammate – a move in which, apparently, “you kind of penetrate the anus for just a brief period of time to prod the wrestler along to wrestle.” For a general discussion of this issue, see Jeffrey Standen, The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence, 99 J. Crim. L. & Criminology 619 (2009).

There’s a sense that players assume the risk of, and consent to, quite a bit of behavior that would otherwise be assaultive when they choose to participate in contact sports. The question is where to draw the line between rough play and criminal conduct. The only North Carolina case on point of which I’m aware is In re Johnson, 2002 WL 417012 (N.C. Ct. App. Mar. 19, 2002) (unpublished). In that case, a 13-year-old was adjudicated delinquent for assaulting a 7-year-old by pushing him to the ground during a basketball game. The court of appeals stated that “intentionally shoving a player on the ground outside the context of the game is not an accepted part of the game” and so could constitute an assault. However, it reversed the adjudication because no evidence was adduced regarding whether the push was in the course of the game or outside it, stating that “[m]inor incidents of pushing and shoving that occur during physical games are not normally subjects that should become matters of concern for our juvenile courts.”

In the end, Barea got up and seems not to have been seriously injured. That, and the fact that Bynum is likely to be punished by the NBA, persuades me that a criminal prosecution isn’t a good use of resources. But whether it would be legally justifiable is a separate question, and I’m not so sure of the answer. If you have a minute, watch the video, and then vote in the poll below.

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