Law and Consent by Karla O'Regan

Author:Karla O'Regan [O'Regan, Karla]
Language: eng
Format: epub
ISBN: 9781138612501
Google: dSzdwQEACAAJ
Publisher: Routledge
Published: 2020-01-15T03:03:11+00:00

4 Modern sport

The Roman people is held together by two forces: wheat doles and public shows.

– Marcus Cornelius Fronto1

When Derek Boogaard was first scouted to play major junior hockey at the age of 16, he had already lived more than half his life. Shy and soft-spoken, at seven feet on skates, he was drafted into the National Hockey League (NHL) on his 19th birthday and spent his short career as one of the league’s most intimidating enforcers – ‘a role for him and his fists, if he was willing to dutifully distribute punishment and quietly absorb pain’.2 Boogaard certainly held up his end, fighting nearly two hundred times over his career and earning 589 penalty minutes in 277 games.3 After years of chronic pain, depression, and substance abuse, Derek died in 2011 from an overdose of alcohol and prescription painkillers. An autopsy of his brain revealed chronic traumatic encephalopathy (CTE) – a degenerative brain disease caused by repetitive head trauma.4 The disease was progressive in Boogaard’s case, and doctors surmised that CTE would have led to dementia as early as his 30s – had he not died at 28.5

The year of Derek Boogaard’s death, the first concussion-related lawsuit was filed against a professional sports league, the National Football League (NFL). It resulted in the largest class action settlement in sports history.6 A study released in 2017 by Boston University researchers sampled the brains of 111 deceased former NFL players and found CTE in the brains of all but one of them.7 More than half of those players with CTE had histories of depression, substance abuse, violence, and feelings of hopelessness, and the most common cause of death among them was suicide.8 A year prior to the study’s release, the NFL’s senior vice president for health and safety publicly acknowledged a link between CTE and football-related concussions.9 This came after years of public denials about the links between long-term brain damage and hits to the head – a line the NHL continues to walk.10 In 2013, more than three hundred former hockey players filed a class action suit against the NHL for the ‘fraudulent concealment’ of the game’s risks and injuries.11 The suit was settled in 2018 – with no admission of liability on the part of the league.12 This has prompted many to describe the NHL as an “athlete beware” culture.13 Players allege that they do not receive full disclosure of the risks of bodily harm that the game entails, suggesting that ‘for decades the NHL has nurtured a culture of violence’ while ‘purposefully profit[ing]’ from it.14 The league’s response rests on the players’ voluntary assumption of risk15, encapsulated in a comment by former NHL enforcer (and career leader in penalty points) Dave ‘Tiger’ Williams: ‘You consent to assault when you lace up your skates. It’s what hockey is all about’.16

The role of the criminal law in regulating how much harm a person may consent to has long been the subject of public debate. Editorial opinions published in the New

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