My Letter to Terry Frei

I am sure this is being spoken about somewhere in the world. Terry Frei, respected writer that he is put this article up on ESPN.com. It was a discussion of what will become of Todd Bertuzzi. This, like my post about Brian Burke and Kevin Lowe falls under the category of all things hockey. I, for my part, wrote the good Mr. Frei to respond and bring up an issue that I find to be hurtful to hockey. The discussion of violence in the sport is one that is full of video footage and statements taken out of context. In my e-mail I discuss what happens when the violence goes too far, and what should happen, contrasted with Terry Frei's opinion on the matter. I hope my e-mail is a good read. Here's a link to Frei's article and the e-mail is below:

http://sports.espn.go.com/nhl/columns/story?columnist=frei_terry&id=3483260

Terry,

Though your article about Todd Bertuzzi has been up for a day or two I only recently got to read it. Generally I agreed with what you put down. Todd Bertuzzi will have a dark cloud hanging over him for far longer than he will play in the NHL. I just wanted to address your discussion of Steve Moore's lawsuit, both from the perspective of a fan and that of a law student. 

I am sorry that I am writing out of annoyance, but it bothers me when people use legal terms, if not definitively, then as reasons for being dismissive. In this case the term you used is "implied consent." Now, I am not a lawyer yet, this is true, and I am sure there are a number of them that would not agree with me, but while you are correct in saying implied consent would be an issue in any Moore-Bertuzzi lawsuit, you are incorrect in using it as a way to dismiss the possibility of such an incident going to court. 

The fact of the matter is that such incidents have already been to court and will continue to go to court in the future. I will point you to a case with remarkably similar facts that said implied consent was not applicable as a matter of law, Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (1979). In that case, Hackbart was sucker punched in the back of the head during a football game. He ended up with a broken neck, and then subsequently went to court. The long and the short of it is that the 10th Circuit Court found that someone could not consent to being hit in a way that was outside the scope of the rules of the game. Such were the punches that Todd Betuzzi landed on Steve Moore. 

Essentially, by dismissing a successful action by Moore you make the point, intentionally or not, that anything goes in hockey and that all players consent to the actions any ruffian feels like taking. As the Hackbart court said, "Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation..." 

You are not wrong in implying that not every single injury or wrongful action taken in hockey and other sports should be litigated. But, dismissing any such action is wrong. Athletes are entitled to have their legal ills cured by the court as much as you, I, or anyone else is. 

As a fan I feel like such dismissive statements hurt the game as much as anything that any cable-news pundit could say. In fact, it happens to be closely in line with their thought process. Every time one of those personalities gets ahold of hockey they always bring up fighting as an issue, and they always have to ask what more can be done? They love to play on how violent a game hockey is and how there a few rules. By inserting implied or informed consent to the discussion you and those pundits erroneously tell people how little can be done to help these athletes.

It is hurtful to the sport to paint it as outside of the law, and to state that a player that has been harmed cannot seek help from the court. You said that it would be embarrassing to the NHL if there were a successful lawsuit, and I say that it would help give the league an air of legitimacy that it so sorely needs. While a suit would end up airing some of the league's dirty laundry, the end result would be help for a person who elected to become a professional hockey player and had his profession taken away from him by the willful act of another person. Right now, any of the cable-news pundits would call every hockey player a thug. Steve Moore's suit could finally show them, for a time at least, that there is a right way to play hockey and a wrong way, and that those that play the wrong way get punished for it. Todd Bertuzzi is likely going to be punished for his actions by the courts, not because he is an athlete or a thug, but because Steve Moore has the same rights as someone who slips and falls on a sidewalk. 

All in all Mr. Frei, I was not trying to just lay down a lengthy diatribe about the law. More I just wanted to try and protect my favorite sport from harm by comments likely intended for brevity than anything else. I also wanted to introduce to you a perspective on professional sports that it seems you have not given total consideration. I hope you had time to read this e-mail fully, and while I acknowledge that I probably will not get a response, any reply would be welcome.

Thanks for your time.

Sincerely,

MJS