The Response

So, Terry Frei, being an upstanding guy actually sent a response to my e-mail. To tell the truth I though briefly about wetting my pants because a sports writer actually responded to my e-mail. That's never happened. Anyways, here's his response:

MJS--

Thanks for the feedback. I was not using it as a legal term, but as an everyday life term.

Cordially,

Terry 

That was basically the total correspondence between us, you know his response and my letter which can be seen in my previous blog. 

Okay, so I just want to break things down a little quickly. While I have the utmost respect for professional writers, and Mr. Frei is included here, they can manage to be deflective if they feel like it. 

Now, I didn't want to get too into the legalities of what Terry wrote, but I did want to make a point that misusing legal terms can hurt your overall message or the sport you happen to be discussing. As per his e-mail, we're going to have to take Terry Frei at his word, that he was using implied consent as "an every day life term." But come on, the last time that I heard "implied consent" in regular conversation was never; at least in any conversation that didn't involve the law. Also, if you look at the context in his article, it was clearly a statement about the law. 

I am making such a big deal about sports and the law because while, in watching a game the idea of the law never comes up, whenever sports are discussed in the real world there is often a legal discussion to go with it. Think about the things that have gone on in sports in the last year or so. There has been Michael Vick, Pacman Jones, and their ilk combined with things like the CBA and the European transfer agreement in hockey, as well as a CBA issue that will start to evolve in the next year or so in the NFL. 

Also, I think adding the legal discussion to the NHL actually helps the league's credibility. Every time the law is brought into the pro sports conversation it is because someone got shot, robbed, arrested, etc. We hardly ever see how a sport can interact with the law in ways that can be, probably not positive, but at least right. This law suit is a demonstration of how there are rules and boundaries in the league and how they can be broken. Why is that good? Because it shows just how far things in hockey like checking and fighting go. This suit would help clarify issues like "The Code" and the roles enforcers play in the sport. 

Many people see those types of players in a negative light, no better than common thugs. But most non-hockey fans don't know the code. They don't know that you're not supposed to throw sucker punches. They don't know how most fights are agreed to ahead of time. They just don't know. Because they don't know how or why fighting is acceptable to the players they don't know why the league condones it. The league's perception of hockey fights is that anything goes. There has been a need for a long time of a way to clarify the difference between savagery and a consensual scrap. Steve Moore's lawsuit would help do that. 

The problem is that the suit is likely to be settled before it goes to trial. 95% or more of lawsuits get settled before they ever see a court room, I'm sure it also works that way in Canada. 

This suit shouldn't be seen as an embarrassment to the league. It should be seen as a way to get some credibility for the league. If Gary Bettman was smart he would make a statement saying that he was glad that there was resolution to this issue and that he was glad that, since the issue called for it, the law was able to resolve Steve's problems. At the same time, Gary doesn't need to say anything about Todd Bertuzzi. He can just not say anything about it. 

I hope that this gets resolved because it has been far too long already. Both Todd Bertuzzi and Steve Moore need it. The league seems completely indifferent to it now. They shouldn't be. They should help the process however they can, and try and be better for it. 

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