NHL’s Rough Edges on Trial in McSorley Assault Case

It was part of the NHL’s routine playlist--the body checks, the slams, the slashes.

On the other hand, it wasn’t: When former Boston Bruin defenseman Marty McSorley skated up from behind and slammed his hockey stick into the head of Vancouver opponent Donald Brashear, the Canuck player was left flat on the ice, his arms and legs trembling in convulsions. He woke up later with a Grade-3 concussion, blood streaming out of his nose, a bruise on his brain.

Foul? Certainly. But criminal? A Canadian provincial judge will decide next week whether the Feb. 21 blow went past the accepted limits of play and became a criminal assault.

And McSorley, already looking at a season-long, perhaps career-ending suspension, will face the prospect of going to prison for playing the role of tough enforcer--the role he got paid to play.

“To engage in a game of hockey is not to enter a forum in which the criminal law does not apply,” asserted Crown Prosecutor Michael Hicks in his closing arguments Friday. “To do otherwise would be to create a forum for unbridled violence . . . which is [not something] the community can accept as within the normal bounds of a National Hockey League game.”

But McSorley’s lawyer, William Smart, said players like Brashear and McSorley--who formerly served as hockey star Wayne Gretzky’s personal on-ice bodyguard in Edmonton and Los Angeles--have a role to play as team enforcers and expect to get roughed up in the course of a game. He said McSorley never intended to hit Brashear on the head, but was aiming for his shoulder.

“Enforcers, role makers, they fight. And they expect to be challenged,” Smart told the court. “NHL hockey’s a rough, aggressive game in which every player accepts that there is a very real risk of injury.”

Judge William Kitchen said he will issue a ruling Oct. 6. If convicted on the charge of assault with a weapon, McSorley could face up to 18 months in prison. There is very little appellate case law in the United States for assaults on the sports playing field, with most prosecutions involving recreational sports; the lower courts have held players criminally liable when they caused injuries either intentionally or recklessly, said Matt Mitten, director of the National Sports Law Institute at Milwaukee’s Marquette University.

“The courts tend to say that you assume the inherent risk of injury in a sport, but what’s part of the game? What reasonably can be expected to occur?” Mitten said. “Two people wrestling, it’s a very rigorous sport, but you don’t assume the risk of another person punching you in the face.”

In a case earlier this year, he said, a 15-year-old boy pleaded guilty after striking a fellow hockey player with his stick and rendering him a quadriplegic. In San Antonio last year, a boy elbowed another boy in the face during a high school basketball game and was sentenced to five years in prison, in part because of a prior criminal conviction.

The few prosecutions of incidents in NHL games resulted in acquittals or hung juries.

In 1975, Boston’s Dave Forbes was charged with an attack on Minnesota North Star Henry Boucha that left Boucha in need of surgery for double vision. The jury deadlocked, and prosecutors decided not to refile charges.

Two American players, Boston’s Ted Green and Wayne Maki of St. Louis, faced criminal charges in Canada in 1969 after an exhibition game led to a stick-swinging fight. Both were acquitted.

Canada’s courts have established a significant body of appellate case law and a number of sports prosecutions, most recently Dino Ciccarelli’s conviction in 1988 when he played with the North Stars for hitting Toronto’s Luke Richardson with his stick. He served a day in jail and paid a $1,000 fine.

The NHL has been critical of the McSorley prosecution, arguing its own stiff penalties are more than adequate. McSorley, 37, got the stiffest suspension in NHL history for an on-ice incident, sitting out 23 games last season and forfeiting at least $72,000 in pay. He remains ineligible to play until reinstated by the league.

Gretzky, a longtime friend of McSorley who has been a leading anti-violence crusader in the league, was said to be horrified when he saw replays of the incident but showed up nonetheless in court briefly this week “to support my friend.”

A parade of witnesses testified that intimidation and picking fights is a normal part of the game for a player like McSorley, whose 6-foot-2, 235-pound frame is used as protection for slighter players looking to score. Nor can a hockey stick wielded against an opponent at high speed necessarily be expected to connect with where it’s aimed in all cases, said McSorley’s former teammate, Steven Heinze, testifying for the defense.

“Maybe Gretzky can do things at that speed and make it look slow, but for most of us normal human beings? No,” said Heinze. “Pinpoint accuracy out there is not something that occurs when a guy is flying by you trying to get to the net.”

Not even Brashear seemed to want to be part of the trial. Refusing to make eye contact with McSorley, the Canuck forward admitted as much when asked by the prosecution, responding to questions mainly with terse monosyllables. He claimed to not even know what happened to him out on the ice until he saw the replays. But when asked if he had consented to be the potential victim of such an attack when he went out onto the ice, he replied equally tersely: “No,” he said.

McSorley had already been bested when he tangled with Brashear once during the Feb. 21 Vancouver game, and with the Canucks leading, 5-2, the Canuck forward had rebuffed several subsequent invitations from McSorley to tangle. Prosecutors said McSorley was irritated at that, and by the fact the Boston goalie was injured by Brashear, who subsequently taunted the Boston bench.

When McSorley was told to go back out on the ice during the final moments of the game, he said, he assumed it was because the coach wanted him to try one last time to tangle with Brashear, if only to boost team morale.

He was aiming at Brashear’s shoulder, and only hit his head because Brashear moved suddenly and his aim was off because of an injured shoulder.

“When you struck Donald Brashear, were you trying to injure him?” Smart said during questioning.

“No,” McSorley replied.

“Were you trying to hit him in the head?” Smart asked.

“Absolutely not,” he said. “I was trying to strike Donald Brashear high in the body, upper arm, shoulder area.”

In arguments Friday, Smart said McSorley clearly showed no intent to harm his opponent. But even under the lesser legal standard of recklessness, he said, McSorley didn’t do anything he hadn’t done dozens of times on the ice--a shoulder slash, he argued, is an accepted part of the game.

“Slashes to the shoulders and arms happen all the time. If that is going to be considered criminal conduct, without trying to make light of it, there aren’t enough courtrooms to try all the cases,” Smart said.

But Hicks argued not only that McSorley should have known there was a risk of badly injuring Brashear by aiming so high, but that McSorley knew full well what he was doing, despite his testimony to the contrary.

“I am not suggesting that Mr. McSorley’s testimony on the witness stand was untruthful. I do suggest that he is struggling to find an explanation for a terrible act that he’s not proud of,” the prosecutor said. “This is a man who believes in the code of honor [among hockey enforcers] and he’s struggling to understand how he could break that code.”

At a time when campaigns against violence in the entertainment industry have escalated, the McSorley case has struck a chord all across Canada, where activists like those in the U.S. have long been critical of the level of routine violence in the game of hockey.

“It’s the only sport in the world where you not only tolerate intentional violence outside the rules, but you actually reward someone who proves to be very able, like Mr. McSorley. You are creating an aura of violence where actions like Mr. McSorley’s are somewhat inevitable, and to me, that’s perhaps the greater crime,” said Bill McMurtry, a lawyer and amateur athlete who wrote a report on violence in hockey for the government of Ontario.

Rose Dyson, chairperson of Canadians Concerned About Violence in Entertainment, said the McSorley incident “was probably an inevitable escalation and explosion of something that’s been building up for a long time.”

The media has aggravated the problem, she said, “because the cameras that televise these hockey games play to these incidents when they occur, and the officials turn a blind eye to all of it.”

The NHL has said it has launched a move that has already demonstrated some success toward curbing violence in the game. The league’s 28 teams played 1,148 hockey games last year and more than half of them--731 games--did not include a fight of any kind, said Frank Brown, the NHL’s vice president of media relations. That represents a substantial improvement over four years ago, when only 512 games were played without a fight, he said.