Thursday, June 24, 2004
Updated: June 25, 5:20 PM ET
Bertuzzi trial may change the game
By Jim Kelley
Think what you will about British Columbia's criminal justice system taking almost four months to charge Vancouver Canucks forward Todd Bertuzzi with assault with intent to injure after he attacked Colorado Avalanche Steve Moore during a game and fractured three vertebrae.
It's not like it came without warning.
Not to trivialize the pain and needless injury suffered by Moore, the foolishness of Bertuzzi and the stain on the game itself, but hockey has a history of assault that rivals that of a street gang.
The NHL is no different. Just look at the wrap sheet:
1988: Minnesota North Stars forward Dino Ciccarelli was convicted of assault for striking Toronto defenseman Luke Richardson several times over the head with his stick. Ciccarelli was sentenced to one day in jail and fined $1,000 CDN.
1982: Winnipeg Jets tough guy Jimmy Mann was fined $500 and given a suspended sentence after being charged with assault for leaving the bench and hitting Paul Gardner of the Pittsburgh Penguins, breaking his jaw in two places.
1977: Dave (Tiger) Williams, then on the roster of the Toronto Maple Leafs, was acquitted of assault for hitting Pittsburgh's Dennis Gonchar with his stick in a game at Maple Leaf Gardens.
1977: Dan Maloney then with the Detroit Red Wings was acquitted of charges for assaulting Toronto's Brian Glennie.
1975: Dave Forbes of the Boston Bruins was charged with aggravated assault after a fight with Minnesota's Henry Boucha. The trial ended in a hung jury and the prosecutor eventually dropped the charges.
1969: In one of the most infamous on-ice incidents of all time, Wayne Maki of the St. Louis Blues and Ted Green of the Boston Bruins went to court after a stick-swinging affair during a preseason game in Ottawa. Green suffered a fractured skull. Maki was not injured. Both were charged and acquitted of assault.
There are others.
In 2001, Marty McSorley was convicted of assault but wasn't required to serve time after he whacking Donald Brashear across the head with his stick in an attack that was noted more for its apparent premeditation than the actual injury.
Even the legendary Maurice "Rocket" Richard was involved in a brawl that led to a lengthy suspension and the threat of criminal action.
So the question is, what happens next?
History shows us that in the short-term, nothing changes. If anything, the NHL is more experienced than all other professional sports leagues combined in dealing with criminal charges against its players and the way they play the game.
There's a better than 50-50 chance that Bertuzzi will be convicted of something, does little to no jail time and eventually returns to the NHL rinks. There likely will be a nasty little civil suit, one that could cost him and the NHL a great deal of money, perhaps shaking the game right down to its financial foundations.
But for now, the game will go on.
In the bigger picture, however, the ramifications are huge. The NHL likes to say it should be left alone, that it can police itself and that the criminal courts should have no jurisdiction over what takes place on the ice because of the implied risk of injury, and even assault.
But as any good lawyer will tell you -- and NHL Commissioner Gary Bettman is a lawyer -- there is a standard that comes into play here. The league has a track record of violence. It says it can contain the violence, but history shows it cannot. And that's a problem -- despite reasonable efforts by reasonable men, the never-ending series of "incidents" brings precedent into the picture.
A good attorney, in either a criminal or civil case, would be able to argue that in fact the NHL cannot or does not police itself adequately and in fact condones an environment that leads to the action.
This may be a tad too legal for casual sports fans, but Bettman has to be concerned. As he once pointed out, a company is on firm legal ground if it takes reasonable precautions and than suffers a tragedy, like a fan being struck in the head by a puck and dying.
The courts understand that accidents happen. But if it happens again, they aren't as forgiving. They'll want to know what the league did to protect its fans. If it did nothing, it's liable for whatever happens. That's why the NHL installed netting behind the goal cages in every building after a teenage fan at a Columbus Blue Jackets game was struck by a puck and died. It wasn't just the right thing to do; it was the legally smart thing to do, as well.
That's what makes the Bertuzzi case so dangerous to the NHL. The sheet shows that even though the league punishes offenders, the punishments aren't deterrents. Any good attorney would argue the league hasn't been able to police itself, then hold up the record for all to see.
So, the question isn't whether or not the NHL saw this coming.
It's whether it changes how the game will go on.
Jim Kelley is the NHL writer for ESPN.com. Submit questions or comments to his mail bag.