I fell on the playing field, the work of an errant heel…

How does the law decide when sport becomes assault? (Image from Reuters)

Earlier this week David Nalbandian had lost his temper somewhat during the Aegon Championships in London and ended up kicking an advertising board towards line judge Andrew McDougall.

McDougall apparently suffered a cut to his shin as a result and Nalbandian was fined over £6000 by the Association of Tennis Professionals and also thrown out the competition.

With the incident being captured on camera from many different angles and taking place in front of several hundred witnesses, the MET have now stated that a complaint of assault has been made against Nalbandian and that they are investigating.

There’s nothing to stop the law getting involved in incidents that happen on the sports pitch but there are certain considerations that are made when deciding if a player’s conduct is not only unsporting, but criminal.

What does the law have to say though when cricket isn’t cricket?

In a few short weeks hundreds of thousands of people around the world are going to pay to watch two people do their very best to kick one another in the head.

In case you’d not guesses it, these people are at the Olympics and they’re locked in vicious combat to decide who is the best at kicking and punching. Eventually one of them will have been kicked in the face enough times to be declared the winner and will get a gold medal and a concussion.

The important thing to consider in this competition – I think it’s probably Taekwondo – is that both of the competitors have consented to taking a little physical punishment in their pursuit of Olympic bruising.

It’s this consent that makes all the difference when the decision is made as to whether a prosecution is appropriate in relation to an injury inflicted in the sporting arena.

The law, and those playing, both accept that in a contact sport, the consequence of said contact may be some degree of pain or injury. The question is does the way that the injury was inflicted fall within the rules and practice of the game?

From the off, the catchy ‘Attorney-General’s Reference No 6 of 1980′ makes it clear that people can consent to being assaulted during the course of ‘properly conducted sports and games’.

This ability to consent established, case law has gone on to clarify how far the consent stretches.

R v Lloyd (1989) made it clear that an injury caused on the pitch but outside the scope of the game’s rules – deliberately kicking a fallen rugby player in the face – was still an assault and could be treated as such.

R v Barnes (2004) examined a case involving a footballer who had broken a player’s leg in a tackle after that player had scored. The issue was when is it appropriate for criminal prosecutions to be launched in relation to an injury caused during a sporting event, and the ruling was as such – the nature of the sport has to be considered before a decision can be made.

Expanding on this slightly, the implication of the ruling was that a broken nose suffered during a professional level boxing match would be viewed differently from the same injury resulting from a punch being thrown on a school badminton court.

As there is a level of injury that can be suffered legitimately before it becomes criminal, it’s important that a sport’s ruling body has firm rules and penalties in place to deal with unsporting behaviour of a level that falls below that at which the courts can deal.

Coming back to the Nalbandian incident and taking into account the case law, especially R v Barnes, those investigating will have to consider how the norms of tennis reflect on the judge’s ‘consent’ to suffering some level of injury.

He’s sat at the edge of the playing area so being hit by an errant tennis ball would likely fall under the umbrella of consent that he has granted to risk injury. What about a flying Nike advertising board though?

As an ongoing investigation I’m hesitant to speculate (so I won’t!) but I think it’s certainly an interesting case. As a tennis player, Nalbandian may be thinking “A criminal investigation? You CANNOT be serious!”.

When it comes to the law, the police may well find that they can.

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