Hosting, Small Ice, and Face Shields

[Jeff Hopkins \'82]

I've seen Brashear's helmet come off several times this year, from much lesser hits than the McSorley hit.  His helmet seems to come off much more than other players.

Contributing negligence :-)

JH

[ugarte]

Greg wrote:
happen to be on a bridge spanning a chasm

But Brashear didn't "happen to be" anywhere.  They were exactly where you would expect to find those two folks when analyzing the expected results from a bonk on the head.  On the ice at a hockey game.

Let's remember exactly where I am coming from, because it isn't that McS should get off without punishment:

Whack to the head = bad.  
Call for permanent suspension = overreaction.
Criminal prosecution = obscene.

[Greg Berge]

b.r.a.,

You missed the point.

The point is that Jason called you on your opinion and you retorted by calling him childish, when rather than being childish he was disagreeing with you and legitimately pointing out problems with your position.  The main point of Jason's argument: that a person who sets in motion a series of actions through intent and that series can be expected to result in serious injury AND that action does result in series, is liable for punishment for the result of the action, is not hyperbole -- it's an acceptable hypothetical example.

But let's go on and look at your position, which is looking worse and worse by the minute.  "Happened to be" happened to be the best I could do to salvage your position: what if McSorley could not have known the extreme result of his action.  But you reject that, so now your hole is much deeper: Given that McSorley knew exactly what could have happened to Brashear, what is the exceptional quality that separates his action from that of any street mugger?

There is only one exceptional quality: hockey is a very rough sport and the level of contact permitted within the rules is far higher than the level of contact for society at large.  You and I are walking along and you are eating a sandwich.  I want the sandwich, so I bang you into the wall with my shoulder, grab your sandwich, and run off in the opposite direction.  In society, that's assault.  In hockey, 3000 witnesses see the whole thing and applaud.

But the standard of permissible violence is not infinite.  I get mad at you and cleave your head neatly in twain, not even bothering to dig through the resulting pile of ooze and brains for the puck?  I don't care how high the standard of acceptable violence is in hockey, that's a felony, almost certainly even in your opinion.  So there are limits on the exceptions permitted within hockey.  Maybe the graph of violence to punishment is y = x in hockey and y = 2x in society, but even though the curve is less steep in hockey it isn't assymptotic: eventually you hit the y = C line where you leave the penalty box and enter the criminal courts.

In the opinion of many of us, McSorley was close to being offsides on that line.



Post Edited (05-01-03 12:22)

[jeh25]

Greg wrote:

There is only one exceptional quality: hockey is a very rough sport and the level of contact permitted within the rules is far higher than the level of contact for society at large.  You and I are walking along and you are eating a sandwich.  I want the sandwich, so I bang you into the wall with my shoulder, grab your sandwich, and run off in the opposite direction.  In society, that's assault.  In hockey, 3000 witnesses see the whole thing and applaud.

Shouldn't that be a biscuit instead of a sandwich?

[kaelistus]

I'm laughing my ass off imagining Tyler Kolarik with a sandwich in the middle of the ice and Murray bashing him to the wall, getting the sandwich and eating it.

Of course, the sandwich must be fish related in this incident, so I'm going to go for Tuna. :-)

[Mike Hedrick 01]

[Q]  In hockey, 3000 witnesses see the whole thing and applaud.  [/Q]

Only 3000?   You're either talking about Lynah or the Meadowlands  :-)

[CUlater]

Greg wrote:

[Q]But the standard of permissible violence is not infinite. I get mad at you and cleave your head neatly in twain, not even bothering to dig through the resulting pile of ooze and brains for the puck? I don't care how high the standard of acceptable violence is in hockey, that's a felony, almost certainly even in your opinion. So there are limits on the exceptions permitted within hockey[/Q]

And yet fighting is "permitted" and, more importantly for this topic, fighting should be expected, and it most often happens away from the puck and has no relation to the actual game.  Are you saying then that if one player instigates a fight against another, depending on the damage he causes the instigator might be liable for a crime?

[Greg Berge]

If in the middle of a fight a player takes his stick and rams it butt-end directly through the opposing player's face mask, sure, that could be a crime.

The scale goes:

(1) Legal play.
(2) Penalizable offenses.
(3) Suspendable offenses.
(4) Actionable (civil) offenses.
(5) Actionable (criminal) offenses.


The rule book gives a solid dividing line between (1) and (2).  League guidelines try their best to at least put up guidepoints between (2) and (3).  The league and the state have to figure out where the divider between (3) and (4) is.  Legal codes again more or less clearly define the standards for (4) and (5).  There are some really obvious things that can take place on the ice during a game that would be well within (4) and/or (5) -- Doug Murray whips out a semi-automatic and splatters Nick Boucher all over the end boards -- in other words, things that aren't hockey at all, where the fact that the guys are on skates in uniform means absolutely nothing.  Then there are borderline-hockey things where all sorts of factors like intent, probability of injury, etc have to be considered.  I think McSorley's is one of those things that's on the cusp between (3) and (4).

If the case came before me in the Hockey People's Court, I would throw out criminal charges but let Brashear sue the pants off McSorley.



Post Edited (05-01-03 17:27)

[ugarte]

Greg wrote:

1 The main point of Jason's argument: . . . is not hyperbole -- it's an acceptable hypothetical example.

2 Given that McSorley knew exactly what could have happened to Brashear, what is the exceptional quality that separates his action from that of any street mugger?

3 There is only one exceptional quality: hockey is a very rough sport and the level of contact permitted within the rules is far higher than the level of contact for society at large.

4But the standard of permissible violence is not infinite. . . .
In the opinion of many of us, McSorley was close to being offsides on that line.

1.  When the analogy game starts with an act intended to cause injury that results in death, it is hyperbole. (In high school policy debate, my friends joked (only half-jokingly) that every position, regardless of topic, has a prepared argument that includes a causal chain to nuclear proliferation and global annihilation.) I don't concede nor believe that McSorley intended to cause injury.  I think he wanted Brashear to turn around for a rematch.

2 and 3. I don't know why you even bothered with 2, since you answered it yourself in 3.  Every legitimate check and 5-for-fighting-punch-in-the-face can result in a player banging falling back and banging his head on the ice.  It isn't enough that he "knew" that a fall on the ice was a possibility, because his actions were not different enough from what happens on the ice in every game.

4.  And this highlights the simplicity of our disagreement.  I don't think he was that close.  A suspension would have been proper, but involvment by the British Columbia courts (even civil court) is a mistake.  Even a lifetime ban would have been a mistake, made more grievous if McSorley were 24 rather than 54 when he clubbed Brashear.



Post Edited (05-02-03 08:41)

[CUlater]

Contending that elements 4 or 5 are a consideration is a very slippery slope in hockey or any other sport.  Short of bringing and using a non-permitted object into the field of play in order to cause harm, I am not sure of any other examples where 4 or 5 should be considered to be at issue.  

In baseball, if a pitcher throws the ball at the head of a batter and he dies or is seriously injured, should the pitcher be prosecuted?

If a hit batsman charges the mound and seriously injures the pitcher (with fists or bat), should he be prosecuted?

In basketball, if someone commits an intentional foul, resulting in serious injury to the other player, should he be prosecuted?

In hockey, if someone intentionally slashes another player and breaks the player's hand, should he be prosecuted?

If someone hooks another player, who falls backwards, loses his helmet and has a concussion for a limited time (or for a long time), should he be prosecuted?

If you start prosecuting players or permitting lawsuits based on actions on the field of play to proceed, the next logical step is to imply some standard of care on the part of on-field officials (or even off-field officials).  In other words, if a hockey player announces (or implies) that he's going after a player on the other team, starts a fight, and then seriously injures the other player, can the injured player sue or seek prosecution against the league for not restricting the instigator's access to the ice, or sue or seek prosecution against the on-ice officials for not breaking up the fight sooner?

[Greg Berge]

[q]When the analogy game starts with an act intended to cause injury that results in death, it is hyperbole.[/q]

Not sure why you're persisting in imagining that anybody who disagrees with you is trying to play you.  Words like "game" are condescending and distracting.  I haven't seen anybody playing rhetorical tricks here, with the possible exception of claiming that a trick is being played.

"Sliippery slope" arguments are why it's easier to buy an AK-47 than cigarettes.  In the end, almost everything is a continuum where there's massive social agreement on acceptability or its lack on the edges, with gradations and differences of opinion as you move towards the center.  Dealing with ambiguity and trying to design a fair system is the whole trick: there's no immutable truth to be revealed like Michaelangelo's sculpture within.

[CUlater]

I'm not sure why you think it's easier to buy an AK-47 than a pack of cigarettes, but even supposing it is, it's only because the right to smoke is not constitutionally implied (and because the gun lobby is more powerful than the tobacco lobby).

As any of the lawyers here can tell you, slippery slope arguments are an important part of how many types of case law have been developed in this country.

But enough about the law.

[ugarte]

Greg wrote:

[q]When the analogy game starts with an act intended to cause injury that results in death, it is hyperbole.[/q]

Not sure why you're persisting in imagining that anybody who disagrees with you is trying to play you.  Words like "game" are condescending and distracting.  I haven't seen anybody playing rhetorical tricks here, with the possible exception of claiming that a trick is being played.

"Yeah" and "um" are more condescending than "game". (Sorry for dragging you back into this, Jason.  I admire that you have wisely moved on to less shrill pastures.  But Greg and I are apparently fated to duel to the death.  Or exhaustion.  Or boredom.  Though I think we had both previously assumed that we had passed exhaustion and boredom and would just take one last look. . .)

I certainly didn't mean the phrase "analogy game" to be condescending.  I don't think that the original analogy (or your chasm analogy) are "rhetorical tricks," just bad logic.  The use of extreme analogies is always something of a game.  Slippery slope logic isn't completely bankrupt, but it tends to obscure far more than it illuminates if the comparison raises questions not relevant to the original scenario.

"Slippery slope" arguments are why it's easier to buy an AK-47 than cigarettes.  

It is easier to buy cigarettes than an AK-47.  It is just easier to shoot an AK-47 than it is to find a place to smoke.



Post Edited (05-02-03 15:16)

[Robb]

Though it'd be easier to find a place to smoke if you were holding an AK-47....   ::uhoh::

[gtsully]

McSorely's cheap shot was not after the whistle, but it was with about two seconds left in the game.