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Why athletes generally don't face criminal charges for on-court fights

Analysis: Ordinarily, when people spit on or punch others, it is potentially criminal. But in sports, prosecutions or lawsuits are rare.
Image: Chris Paul, LeBron James, Rajon Rondo
Houston Rockets' Chris Paul, second from left, is held back by Los Angeles Lakers' LeBron James, left, as Paul fights with Lakers' Rajon Rondo, obscured, on Saturday.Marcio Jose Sanchez / AP

Suspensions have been handed down after the NBA’s review of tape of a melee involving players Chris Paul, Brandon Ingram and Rajon Rondo.

Rondo is believed to have spit on Paul, but the league concluded Ingram was the initial instigator. According to the NBA’s release: “Ingram has been suspended for aggressively returning to and escalating the altercation and throwing a punch in the direction of Paul, confronting a game official in a hostile manner, and instigating the overall incident by shoving Rockets guard James Harden.”

Ordinarily, when people spit on, punch or shove others, it is potentially criminal, or the possible basis for a civil lawsuit. In the sports context, however, neither prosecutions nor lawsuits generally result from this behavior.

The California Penal Code defines battery as any willful and unlawful use of force or violence upon the person of another. The absence of consent is an element of battery, which means that if an athlete consents to the use of force, then there is no crime.

When someone agrees to play a sport, they effectively consent to physical contact consistent with the understood rules of the game. By stepping onto the field of play, athletes assume the risk inherent in the activity. As put by one California court, the “boxer who steps into the ring consents to his opponent’s jabs; the football player … consents to [the] hard tackle; the hockey goalie … consents to face his opponent’s slapshots; and … the baseball player … consents to the possibility the opposing pitcher may throw near or at him.”

But what degree of violence is considered “part of the game”? Shoving after a play might be forgivable. Spitting or punching is less forgivable. In general, voluntary mutual combat outside the rules of sport is a breach of the peace. Mutual consent is no justification, and both participants are guilty of criminal assault or battery.

The ultimate question: Is punching or spitting one of the inherent risks of basketball, which should be punished within the rules of the game, but not in the criminal or civil courts?

Strangely, fistfights are not equally condemned across different sports. In boxing, punching is the sport itself, so it’s encouraged. If an errant punch lands after the bell, however, it can result in a penalty. In hockey, fighting is an accepted and expected part of the game, though it is also penalized. In basketball hard contact is expected, though it can result in a foul. Actual brawls are less common, but they have happened. Prosecutions for basketball fights are even less common, but they too, have happened.

In a 1990 Iowa case, a fight broke out during an aggressive recreational league basketball game. One player was convicted of assault causing bodily injury, a serious misdemeanor. The court, in upholding the conviction, acknowledged that the game featured a lot of hard fouls and shoving for rebounds. The court considered whether players consent to an assault occurring during a sporting event and concluded that at the time of the fight, the defendant and his victims were not “voluntary participants in a sport,” so being punched in the face was not a reasonably foreseeable incident.

In 2004, a game between the Detroit Pistons and Indiana Pacers led to a historic brawl involving players and fans. Five Pacers players were charged with misdemeanor assault, which resulted in pleas of no contest and sentences of probation and community service.

Paradoxically, however, the most brutal, unwarranted punch in basketball history resulted in no criminal charges at all.

During a game in 1977, Los Angeles Laker forward Kermit Washington delivered an unwarranted, near-fatal punch to Houston Rocket forward Rudy Tomjanovich during a fight that broke out during a game. The blow resulted in a fractured skull, broken jaw and nose, other and leakage of spinal fluid, which almost killed Tomjanovich.

Los Angeles Lakers forward Kermit Washington was fined an NBA league-maximum $10,000 and suspended for at least 60 days by NBA Commissioner Lawrence O'Brien for punching Houston's Rudy Tomjanovich in this game at the Inglewood, California, Forum in December 1977.
Los Angeles Lakers forward Kermit Washington was fined an NBA league-maximum $10,000 and suspended for at least 60 days by NBA Commissioner Lawrence O'Brien for punching Houston's Rudy Tomjanovich in this game at the Inglewood, California, Forum in December 1977. Bettmann file / Bettmann Archive

Washington was fined $10,000 and suspended 60 days by the NBA. He was not charged with any crime, even though this is widely considered one of the most brutal assaults in the history of professional basketball. Washington eventually returned to the league and became an all-star.

Prosecution of midgame altercations in professional sports remains a rare occurrence, despite these events being heavily photographed and broadcast to millions. Prosecutors appear to defer to the internal discipline of professional sports leagues, and only rarely step in when conduct falls far outside the realm of implied consent.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.