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  Transcripts

TalkBack Live

Sports and Violence: Dirty Play or Criminal Acts?

Aired March 10, 2000 - 3:00 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BOBBIE BATTISTA, HOST: Should a high school basketball player spend five year behind bars for elbowing?

(BEGIN VIDEO CLIP)

BRENT HOLMES: I think that's what he needs to think about what he did, think of all the time and suffering that he put me, my family and my friends, everyone else -- humiliation, all that stuff, you know. Now he has time to think about what happened.

(END VIDEO CLIP)

BATTISTA: Eighteen-year-old Tony Limon was already on probation for attempted burglary when he forearmed Brent Holmes in the head during a game. Holmes suffered a concussion and a broken nose and required surgery.

(BEGIN VIDEO CLIP)

TONY LIMON: If I could do it again, none of this would happen.

(END VIDEO CLIP)

BATTISTA: Is the punishment too harsh?

(BEGIN VIDEO CLIP)

OLIVIA RAMSEY, TONY LIMON'S MOTHER: I feel what happens on the basketball court, or in any game, should be resolved there. God knows there are NBA players which are, quote "role models" for us -- they do it and I've never heard of any one of them going to jail -- none of them.

(END VIDEO CLIP)

BATTISTA: Do the pros influence kids? Take a look at this slash by Bruins defenseman Marty McSorley against Canucks winger Donald Brashear. And last year, a high school hockey player slashed a 15- year-old opponent and paralyzed him. Is it assault? Is it criminal? Or is violence just part of the game?

Good afternoon, everyone, and welcome to TALKBACK LIVE on this Friday afternoon. What is the line between aggression and assault when it comes to playing sports? Is a bean-ball accident competitive or criminal? And how far should an athlete go to get the win?

Joining us first today are Art Taylor, Director of youth sports at the Center for the Study of Sport in Society at Northeastern University. Also with us, Jeffrey Jacobovitz, a white-collar criminal defense attorney. And joining us momentarily, we'll also have Jim Washington, a former NBA player, to get his take on this.

But, Jeffrey, let me start with you. A lot of issues here, but I think the bottom-line question is: Should an athlete be held criminally responsible for actions during the sport, during the game?

JEFFREY S. JACOBOVITZ, CRIMINAL DEFENSE ATTORNEY: Well, I may be in the minority today, but it's my feeling that the league should really control it. To commit an assault or battery, you have to deliberately intend to harm someone. And there's a lot of violence in sports today, and a lot of what goes on on the court should remain on the court. If a baseball pitcher beans somebody, if a hockey player checks someone, if a basketball player gets into a fight with another basketball player, where do you draw the line? Do you continually prosecute people for this? I think that...

BATTISTA: I don't know. I was going -- Art Taylor, where do you draw the line? When does dirty play become a criminal act?

ART TAYLOR, NORTHEASTERN UNIVERSITY: Where you draw the line is when something has nothing to do with the game, like the McSorley incident, and an attempt to injure someone takes place. At a time like that, the courts have to have the right to work with that person.

BATTISTA: What if it happens within the context of the game like this basketball playing incident?

TAYLOR: There's a floating continuum there, but what happens is the game has to have its sanctions again. We've started getting too lax. We've let people pay one- or two-game suspension for serious injuries. If the leagues want to take care of themselves, they have to have much stronger sanctions.

BATTISTA: Well, Jeffrey, what about the heat of the game, the will to win this sort of thing? Do these become mitigating circumstances?

JACOBOVITZ: Absolutely. There's a certain passion to sports and there is violence and other acts of bodily harm that occur during sports. It is part of the game. Now, if somebody after the game takes a hockey stick when the game is over and clubs somebody on the head, well, that's a different story. But in the heat of the game, in the heat of the passion, you have to have the league control and sanction the player.

BATTISTA: And, Art, you don't think that those are circumstances that should be taken into consideration? TAYLOR: Basically, I think that was ridiculous. You should look at this as road rage. And somebody upset McSorley, and it took him awhile, but when he finally got back, he assaulted him. That's a crime.

JACOBOVITZ: Art, what happens every time Bob Gibson brushed back a hitter, if the ball would have hit the batter? Do you prosecute him each time? Is that ridiculous?

TAYLOR: It was a message and a part of the game. And if he was throwing to injure and if you got that on one or two occasions where it was definitely thrown to injure, I'm afraid he would have had to have been sanctioned.

JACOBOVITZ: And violence is...

BATTISTA: Let me get another...

JACOBOVITZ: I'm sorry, Bobbie.

BATTISTA: I'm sorry. Go ahead, Jeff. Go ahead.

JACOBOVITZ: Violence is not part of the hockey game? Cross- checking? There are fights in the NBA. What happens when a Miami player throws a New York player into the stands and the Knicks leave the bench? Do you prosecute everybody for joining the fight? Where do you draw the line, Art?

TAYLOR: No, that's where the stronger rules on the part of the leagues have to take place, and they have to take care of themselves and they have to have very, very strong sanctions, and they can't accept the behavior you're talking about. Kids watch that and they do exactly the same thing. That can't be allowed.

JACOBOVITZ: Well, I agree with you the league has to take control, but I don't think the prosecutors should. The prosecutors have to have discretion in what they do and I think this is certainly something that shouldn't be prosecuted.

BATTISTA: We do have -- we have two really different circumstances here because -- we have to note that one incident took place -- amateur sports in a public high school. The other McSorley case that we're talking about is professional sports where they have their own rules and they have their own punishments and this kind of thing. I mean, don't we have to deviate between the two, Jeff?

JACOBOVITZ: Well, the amateur sports situation is a bit different. But still, what -- for example, if the kid hit the other kid and the coach had told him to do it? Who do you prosecute there? What's a kid to do if a coach instructs him to do something? And if it's a juvenile, the juvenile system is certainly different than the adult system. In the professional context, it should be regulated strongly and closely by the league.

BATTISTA: Let me bring in another voice into this conversation.

Jim Washington is with us now, a former NBA player and director of community affairs for the Atlanta Hawks. Jim, thanks very much for coming down today.

JIM WASHINGTON, FORMER NBA PLAYER: My pleasure.

BATTISTA: You played professional, and I realize it's not the same as high school, but, I mean, what's your take on this? Have you seen the incident involved here?

WASHINGTON: Well, I played and little high school basketball, too, and college, and this is an interesting topic. We're certainly entering into a -- on grounds that has not been explored before, at least to this depth. I have mixed emotions about it. I think that -- how do you determine whether something is done intentional or whether it's done in the heat of competition? Who makes that decision? I don't think that anyone outside can make that decision, can make an objective decision about something like that.

BATTISTA; And what about the coach? Because, according to this kid, the coach was the type who had said things to him like, it's about time you shed some blood out there, and there have been other testimony from assisting coaches and this kind of thing, that this coach was an aggressive coach that way. Now, he -- this coach denies that. But ,at the same time, if he were that kind of coach, that's a lot of pressure on the player, isn't it?

WASHINGTON: And absolutely. It would be irresponsible on the part of a coach to send a player out with the intention of harming someone else. And I think if that is, indeed, the case, then not only that player but also that coach needs to suffer the consequences.

BATTISTA: And, Art, at the same time, these two boys apparently -- this is an arch rivalry that goes on between these two schools and these two boys have been at each through the whole game. And, I mean, is it that surprising that one of them finally cold-cocked the other; not that it's right, but, again, mitigating circumstances?

TAYLOR: Sport and society has been working on how do we make it a positive example for young people? And in this case they probably shouldn't have been allowed to be on each other that long. They probably needed a game suspension during it before some of these kinds of things arose. It seems like a harsh -- a very harsh penalty on this young man if we're going to allow it to go on in other settings, and I think we're going to have to take a look at the general setting.

BATTISTA: Jim, the reality is you don't take your best players out of the game, though, right?

WASHINGTON: No, you sure don't. And, again -- and I think that this particular situation -- and I don't know the details of what exactly took place, but I think if you start looking at the sports and competition and you start trying to legislate what takes place, I think the league -- the NBA, as an example, looked at the issue of violence and we started imposing stiffer penalties to curtail and minimize what is taking place on the court -- the issue of a flagrant violation or a flagrant foul, as an example, where it is determined by the official that the player who committed the foul did so with an intent to cause harm and not to block a shot. And in an incident like that, the team and the player gets not only the two foul shots, but gets an opportunity to keep the ball. We're doing things like that to -- again, to minimize the potential of violence in our game, but also to protect the players that are playing it.

BATTISTA: Let me get the audience in on this. A lot of basketball fans in town for the tournament.

Rusty, what do you think?

RUSTY: Well, I think that there should be some punishment. However, I don't think it should be criminal in nature. There is some degree of assuming a risk when you play a sport. And, once again, you can't draw that line. How do you ever determine what line it is that you cross? Whether or not you have crossed that line is an altogether, totally different issue. And I think it should be handled internally. And whatever they determine is an appropriate internal punishment, is what should be done.

(APPLAUSE)

BATTISTA: A lot of the audience apparently feels that way.

Jeffrey, this is a precedent-setting case, is it not? I don't think that there has ever been a high school athlete involved in -- in criminal action for a sport activity before.

JACOBOVITZ: I believe you're right, Bobbie. And, you know, it's interesting. Talking about the NBA, many years ago there was an incident where Kermit Washington turned around during a fight and threw a punch and Rudy Tomjanovich went running right into him and was injured pretty severely.

And that's a situation again, in the heat of passion, I think you have to have the league take care of the situation, just like Jim said. And I agree with Jim. And in a flagrant foul situation, a player could be sent flying to the ground, could be injured, could end up with a concussion. But they're not criminally prosecuted. Eventually, the player could be suspended because of the flagrant fouls if they add up, but the player is not prosecuted.

BATTISTA: And, Art, for right -- for better, for worse, for right or for wrong, don't we expect and in many cases accept aggressive violent action like this in our sports?

TAYLOR: I certainly hope not. We'd have to change it if we do. Remember when Dennis Rodman kicked the cameraman in the groin? That was a criminal act. There's no question about it.

BATTISTA: But that -- that was not during play, was it or was it? Well, actually it was.

TAYLOR: Yes.

JACOBOVITZ: It did take place in the course of the game. That's correct. BATTISTA: That's right, that's right, that's right.

All right. Let me go to the audience here and Jonathan, is it? Yes, go ahead.

JONATHAN: I think -- I want to mention the difference between the high school level and a professional level, because on the professional level there's such a higher level of scrutiny. And I'll give you an example, in football it's capable of being fined after the fact for a violent act, say, taking down a quarterback or something like that, where at the high school level, you have an amateur television camera, and we saw that we couldn't really determine what was going on even.

And even on the level higher than that, people on the professional level are such -- capable of overcoming adversity or maybe additional penalties than somebody on the high school level. If someone's kicked out of high school for attacking somebody on a basketball court that not only destroys their athletic career but it also destroys their education and their contribution to the community.

BATTISTA: He -- he was not kicked out of school, we should say that. He did finish out his senior year and then was arrested and charged.

JONATHAN: And then was arrested and sent to jail for five years, which is not going to improve his life or allow him to contribute to society.

In addition, professional athletes are kept to such a higher standard and they're held to such higher critique for what they do on the field. And you can tell the difference more accurately on the professional level than on the amateur level because of the scrutiny. And I was just mentioning the difference between a professional athlete's actions and an amateur athlete's actions and their ability to overcome them.

BATTISTA: All right, we'll talk a little bit more about that after we take a break.

One of the 13 original rules of basketball reads in part, "No shouldering, holding, pushing, tripping or striking in any way the person of an opponent shall be allowed."

The original rules were published in January 1892 in the Springfield College school newspaper, "The Triangle."

(COMMERCIAL BREAK)

BATTISTA: We are back with two more guests. Joining us now, Beau Bock, founder of The Zone, a sports radio station here in Atlanta. Also with us Steve Malzberg, a radio talk show host of a WABC radio talk show -- that was redundant, wasn't it?

But anyway good to see you Steve. STEVE MALZBERG, RADIO TALK SHOW HOST: Good to see you again, Bobbie.

BATTISTA: Beau, let me start with you. I know you guys have talked about this on the station you work for. What do you think of all of this? Let's take the basketball incident.

BEAU BOCK, SPORTS RADIO TALK SHOW HOST: Well, the basketball incident -- and I think that's out of the context of sport. And I think that's what's the important matter here Bobbie is what is within the context of the sport?

I think what Marty McSorley did is not within the context of the sport. And I heard somebody mention what about a pitcher who hits a batter? Well, that's within the context of the sport.

Last year, there was a college player who threw at a hitter in the on-deck circle with the intent to injury him. That's not within the context of the sport. And I think on the prosecution's part, this is purely a subject of matter. If you've got an eye for sport you know what's allowed, you know what's within the context of the sport. The Kermit Washington, Rudy Tomjanovich thing, that could almost be construed as being within the context of the sport.

Juan Marichal beating Johnnie Roseboro over the head with a bat, that's not within the context of the sport.

BATTISTA: So, you're saying that if this kid had just been charging down the court and ran into the other player and is -- and, and still threw that kind of an elbow at him, that that would have been within context to the sport.

BOCK: Sure, Bobbie, if they're jockeying for position, trying to get position, elbows fly randomly. That happens. But when he takes an elbow with the intent to injure and throws it into his nose, I think at that point it becomes, you know, maybe the prosecutor's obligation to say, what's going on here?

I mean, look at violence in sports today. Hockey and football are very violent sports. Look what's going on outside the field. Look at the Ray Lewis situation. I think that sport mirrors society, and it's so much more containable within the realm of sports than it is in society that I think the prosecutors are stepping in now.

BATTISTA: Steve, what do you think?

MALZBERG: I think on the professional level, I think you're -- the audience member, John, had it right. You need to separate the high school level and the professional level. On the professional level, I think the leagues can police themselves unless the player involved on the receiving end of the act is hurt so badly or cannot go on and play anymore and asks the prosecutor to prosecute.

I think what's happening in Vancouver now with McSorley is just grandstanding on the part of the prosecutor. In the high school incident, you're still in school. You might as well be in the classroom. You're a high school student giving -- getting theprivilege of playing in athletics. And what you do in the context of school should be criminally punishable if you punch a classmate.

However, it's important to realize here, as you, Bobbie, alluded to earlier, that this high school student who got the five-year jail term, he pleaded to a count -- he hoped to get probation. He could have gotten between probation and six years. He got five. Why did he get five? Not just for the punch. He got five because he was already on criminal probation for attempted robbery. And that's what the judge said when he gave him the five years. I thought five years was way excessive until I read the whole story, and then it's up to the judge's discretion.

BATTISTA: I -- can a judge do that, Jeffrey? Can they consider the attempted burglary probation when considering the punishment for something else?

JACOBOVITZ: Sure, judges always consider the prior record of an individual. In fact, under the federal rules and under the sentencing guidelines, that's part of the equation in how a judge determines what the sentence is.

BATTISTA: So do you think that makes this a more justifiable punishment then?

JACOBOVITZ: I think it may make it a justifiable punishment, but five years is certainly excessive still. And I understand the context of in the context of the sport. And we're sympathetic, obviously, to the victim, but five years is a long time.

BATTISTA: To the audience...

MALZBERG: But the National Hockey League, Bobbie...

BATTISTA: Yes.

MALZBERG: ... policed itself. They gave McSorley the harshest suspension in the history of the NHL. And there's been some ugly incidents in the history of the NHL. They're a private league, they're a private group. The players know that they're subject to certain things, certain checks, certain punches, certain violence. There are penalties for fighting. It's not disallowed. You can fight.

There's no excuse for what McSorley did, but he's gotten punished financially very severely by the league. I don't think you need a Vancouver prosecutor looking to make a name for himself all across North America butting into this, when the victim of the slash himself is not calling for criminal prosecution.

BATTISTA: Let me go to Wendy in the audience here, and then I'll take a phone call.

WENDY: I think that criminal sanctions will change the level of play. If the players are thinking about whether or not they're committing illegal acts instead of playing their instinct, playing how they're supposed to play. BATTISTA: Jim, what do you think as an ex-player?

WASHINGTON: Well, it's an interesting question here. And the issue is nothing precludes a player on the court from pursuing criminal or any type of action if he wants to. What we're talking about here is again making it an issue that takes it out of the hands of the individual and puts it in the hands of the prosecutor in this case. But nothing precludes -- if Beau Bock in a game wants to hit Jim Washington, there's nothing to stop me from suing Beau Bock. That can take place.

BOCK: Don't do that, Jim. Hit back.

MALZBERG: Well, look -- look at Latrell Sprewell...

BATTISTA: Right.

MALZBERG: ... That was out of the context of a game. That was clearly criminal activity, and the league sanctioned it in effect by deciding -- the league and the team -- not filing criminal charges against Latrell Sprewell.

BOCK: Well...

JACOBOVITZ: He choked his coach in practice. And it's not really the league filing the criminal charges, it's really the prosecutor pursuing the charges and that the league could recommend to the prosecutor to pursue the charges...

MALZBERG: But they didn't.

JACOBOVITZ: ... but -- they didn't. They didn't.

MALZBERG: If they had then they would have.

BATTISTA: Coach didn't want to press charges, did he, against his player?

MALZBERG: No.

BOCK: Well, no, he didn't want to press charges. But, you know, the other thing is, you know, the prosecution didn't want to step into that situation. Nobody wants to see the law enforcement agencies come into sport. The National Hockey League has probably been the best league at policing themselves, but, you know, prosecution, if they see something and it's in their subjective mind they say, hey, this is out of the context of the sport, then I think they're going to step in unfortunately.

BATTISTA: Well, they are going to step into the case in Vancouver. We have to take a quick break, and when we come back we'll talk more about the McSorley case which we've mentioned several times, so we'll show you that tape when we come back.

(COMMERCIAL BREAK) BATTISTA: Welcome back.

We're talking about sports behavior on this Friday. It is hardly unusual to witness a brawl at a hockey game. Fans almost always expect it and they're seldom disappointed. But when Bruins defenseman Marty McSorley slashed Canucks winger Donald Brashear -- ouch -- on the head during the game, he was charged with assault. What took this attack out of the category of competition and into that of a crime?

On the phone with us now is Geoffrey Gaul, who is crown counsel in British Columbia's Ministry of Attorney General.

Welcome to the show, Mr. Gaul. Thanks for joining us.

GEOFFREY GAUL, CANADIAN PROSECUTOR: Good afternoon.

BATTISTA: I know you can't talk about the details, per se, of this case, but what charges have been filed against McSorley, and how did your office come to the decision to charge him?

GAUL: Well, what happened in this case, everybody knows an incident occurred on February 21 at the hockey game between Mr. McSorley and Brashear. The Vancouver police investigated the allegations in the incident that occurred. Once they completed their investigation, they forwarded their report to us to do an independent, impartial review of the evidence to see if it meets our charge approval standard, and it did. So Mr. McSorley has been charged with assault with a weapon contrary to the criminal code of Canada, one count of that.

BATTISTA: And why was the punishment meted out by the NHL to him, which was what, throwing him out for the rest of the season? Wasn't it, I think? Yes.

BOCK: Yes.

BATTISTA: Why was that enough in your mind?

GAUL: Well, again, as you pointed out, I have to be careful that I don't discuss the specifics of the case because it is before the court. But it's -- I guess what's important to remember, hockey is a physical sport. It's one thing for it to be physical. It's another thing for it to be, say, dirty. And if you're dirty there are penalties and there are ways of dealing with that. But it's a completely different thing to talk about once it becomes criminal. Once it crosses the line into the criminal domain, the police investigate. And if the police believe that there's evidence of a crime and bring it to us, we apply our charge approval standard, which is uniform. And if it meets that standard, then we go to court with it.

BATTISTA: McSorley has a past history of excessive aggression in the game of hockey. Did that enter into your decision to charge him at all?

GAUL: Well, I think what the important thing to remember here is there are two aspects or there are two parts of our policy. One is,does the evidence lead to a conclusion that there's a substantial likelihood of conviction? That's the test in British Columbia. And if it does, if the evidence does lead to that conclusion, then the second part of our test is, is it in the public interest? Does the public interest require a prosecution?

And we've concluded yes to both of those. The public interest does require it. And yes, the evidence is there. Keeping in mind the important point, Mr. McSorley's innocent until proven guilty, the burden is on us to prove him guilty. At the end of the day a judge will decide. We present the evidence in a fair and impartial manor, and if the court concludes he's guilty beyond a reasonable doubt, then that's where it lies.

MALZBERG: Bobbie, could I ask...

SCHAFFLER: Yes, go ahead.

MALZBERG: ... what the standard they use in Vancouver, that this is in the public interest? I mean, come on, isn't there a crime going on in Vancouver you can spend your time -- or are you wouldn't get the national and international exposure from prosecuting local criminals in Vancouver. This is ridiculous. What exactly is the public interest in having McSorley -- the police investigate, and you raise their standard, see if it fits the mold? Come on, we're talking about an incident which is black and white on film. What's the public interest here? I'd be very curious to know.

GAUL: Well, there are obviously difference in system between the Canadian system and the American system. Crown counsel in British Colombia, we're independent, and we apply a very balanced, impartial, public policy that's available to all to know. When it comes to a public interest, the public interest test of our charge of provable standards, there's a number of factors we consider. Naturally, we have to consider the nature of the allegations. Are they trivial, or are they serious? We would also consider whether a weapon was used. We would consider also the impact upon the victim, just some of the factors that come into play when we consider whether it's in the public interest to prosecute.

BATTISTA: Hockey is a big, long sport in Canada. Has this ever happened before? Have you ever had hockey players in criminal court?

GAUL: Actually, we have. To my immediate recollection, there's recent case in the past few years, a player was charged and was convicted, and he served one day in custody. There was another case back in the 1970s where two players went at it on a rink, and there was an acquittal. And I guess what's -- there's a point to be remembered to be taken from that case, and let me just note it. This is what the judge said: "No sports league, no matter how well organized or self-policed it may be, should thereby render the players in that league immune from criminal prosecution. So what we have in this case, as I said earlier, one thing to be physical, one thing to be dirty, but if you cross into the criminal domain and the police get involved, then if there's evidence, we'll prosecute it. BATTISTA: All right, Jeffrey Gaul, thanks very much for joining us today. Appreciate your time. To all of you guys -- yes, go ahead, Art.

TAYLOR: Some of the facts that he's not able to talk about that are so important was the last two seconds of the game, they hit -- nothing to do with the game. It was aimed towards the temple, the one single area of most danger. and it was taken in such a way because the other person would not fight back.

MALZBERG: And he was thrown out of the game.

TAYLOR: That is such an extreme.

MALZBERG: Can you imagine the taxpayers of Vancouver wasting their money on this nonsense? This is major investigation -- come on. He wants to make a name for himself, and he's done it.

BOCK: And the other thing is you -- he said on "Sportscenter" he came on the ice definitely trying to make a confrontation with Brashear, and there were so many ways to do that. He could have stood in front of him, dropped his gloves. He could have bumped him. He could have done anything. This was, in my mind, something that was out of the context of the sport.

BATTISTA: All right, we'll take a break and continue here in a moment.

(COMMERCIAL BREAK)

BATTISTA: We will come back.

Poor Dave has been hanging on the phone in Nebraska here for a while.

Dave, go ahead.

DAVE: Some of the sports that we play there is an inherent amount of violence built in, like with hockey, football, boxing, wrestling. These have violence as a part of it. You can't change that, but you can try to keep it within a controlled limit. However, a right hook is not a part of a basketball coach's playbook last time I checked. And baseball, if you hit somebody -- I played baseball when I was little -- I was expected to go over and shake the guys hands with my hat in my hand to apologize and tell him I'm sorry. If I was getting too wild, the referee or the umpire pure would throw me on out of the game because I was losing my control.

We've traded sportsmanship for dollar signs, And a lot of the -- I won't say all, but a lot of athletes are out there now saying, I'm an athlete, I'm special, I can do whatever I want. Wrong, you're an athlete, you're special, but you're no different than me, and you have to abide by the same laws and rules that I do.

(APPLAUSE)

BATTISTA: The stakes change quite a bit when big money is involved. Thanks, Dave. Appreciate you hanging on for so long.

And along those lines, Leslie had a question.

LESLIE: My question is why do leagues, professional sports leagues, make decisions after the fact? Why don't they have rules determining -- well, they a foul in basketball. You go to the free throw line. After six, you're kicked out of the game. Why don't they continue that spectrum if you do something even more serious, that you're kicked out of the league? They should have rules, in my opinion, prior. I mean set rules up permanently so that they know if they do something they run the risk of being kicked out of the league.

BOCK: They do, Leslie, and those fines are meted out all the time, I mean, almost weekly, and there is a precedent that has been set for each type of fine, but what this situation is what somebody really going beyond, as the prosecutor said, stepping into the criminal element, and you really can't set a precedent or an agenda for that.

MALZBERG: But Leslie's question is why don't they have rules on the books, for instance, in fighting if you do what McSorely did, which is beyond just five minutes for fighting or game misconduct, you're out of the league forever, then no one will do that. That might not be a bad idea. Just like if you kick a cameraman. Dennis Rodman involved someone else other than the players. So what he did when he kicked the cameraman was a criminal act. What he did when he spit at that time referee once was not a criminal act, because it was in the context of the game. When Charles Barkley spit on a fan that was, in my view -- I don't how criminal, but it was not within the context of the game. BATTISTA: But, Jim, in the basketball incident, you know, when you let an elbow fly in basketball, what has to be proven here is intent...

MALZBERG: Right.

SCHAFFLER: ... you know whether you intended to intentionally inflict, and we were talking during the break that that's extremely difficult to prove on a basketball court.

WASHINGTON: Well, you really don't have criminal intent in throwing an elbow. You throw an elbow in the course of a game it's a foul, and it's a technical foul. But I would differ from you the comment that was made that spitting on an official is in the context of a game.

MALZBERG: But it's not a criminal act.

WASHINGTON: No, not a criminal act, but it's not in the context of the game.

MALZBERG: I meant you're not going to be prosecuted for it. JACOBOVITZ: Well, the criminal act is the intent to harm someone, and I the problem with what the Vancouver prosecutor talked about is he needs to see a provable case. Well, any time a hockey player drops his gloves and they fight with each other, that's an assault and battery. They're intending to harm someone.

BOCK: Well, that's within the...

JACOBOVITZ: And when McSorley hit somebody with a stick, well that's an assault with a weapon. All of these cases should be prosecuted.

MALZBERG: But they make provisions for fighting in the game. It's allowed. You only get five minutes, then you're back in the game.

JACOBOVITZ: Absolutely. All of these...

BOCK: That's right. That's within the context of the game.

JACOBOVITZ: And if he's trying to look at the public interest, well what is he trying to do? Deter fighting in hockey? That is part of the sport.

MALZBERG: That's the part I don't understand.

JACOBOVITZ: And that's what the league sanctions. That's part of the sport.

BOCK: No, but when he was -- Brashear was already by him. He took a cheap shot at him. If they were going to go up to him and just drop gloves, that's fine. That's within the context of the game.

JACOBOVITZ: But that's still an assault.

BOCK: If a random elbow comes up, that's within the context of the game. But when you deliberately try to hit somebody in the face, deliberately with an elbow, that's not within the context of the game.

JACOBOVITZ: But that's why it's difficult to draw the line. And that's why -- what Leslie says is a big question. You know, there are random drug tests or drug tests given and the league can sanction players for that. But to say for a certain kind of fighting, it's very hard to sanction someone. But it could be the league...

BOCK: Well, it is difficult to draw the line, but, you know, this is subjective, and obviously it's not difficult to draw the line when you see what McSorley did. It's not difficult to draw the line when you saw the pitcher in college throw at the batter in the on-deck circle. It's not difficult to draw the line in a number of situations.

JACOBOVITZ: Well, that is not in the context of the game. But they draw the line in the context of the game, but that, you know, throwing at somebody in the on-deck circle is certainly a different situation. What do you do when Mike Tyson bites somebody's ear during a fight? Do you prosecute him? BOCK: That's criminal. That's criminal.

BATTISTA: Ancia (ph) has a similar -- let me go to the audience here quickly -- a similar thought -- Ancia.

ANCIA: I think it's a scary thing when we start making excuses for people either in a professional sport and who are members of the society. I think, first, we're a member of society and they should be sanctioned by the same laws that the rest of us are. And if you can prove intent, then why should they not be criminalize -- or it should be a criminal act just like the rest of us?

MALZBERG: Because it's taking place outside of society. Again, the kid in the high school basketball team is in high school.

ANCIA: Breaking the law -- assault is assault.

MALZBERG: It's not breaking the...

ANCIA: If you can prove that it's not in the context of the game, they should be sanctioned, in my opinion, under the same laws and rules as the rest of us are.

JACOBOVITZ: He was kicked out of the game. He had lost thousands of dollars.

ANCIA: Just like a police officer: Just because he carries a gun doesn't make -- give him the right to shoot anybody.

(APPLAUSE)

MALZBERG: Now, that's ridiculous.

BOCK: Guys get kicked out of games all the time, I mean, but this went beyond that. So, you know, I think you're absolutely right.

BATTISTA: We got to take a break. Back in a moment.

ELAINE: Hi, my name is Elaine from American University. I think there's a distinction between competitive roughness and violent play. Therefore, I think (UNINTELLIGIBLE) should be held accountable for his actions.

(COMMERCIAL BREAK)

BATTISTA: Art Taylor, did you want to jump in and -- I think you wanted to make a point there back when we had 9,000 people talking at once. Go ahead.

TAYLOR: Yes, Bobbie.

First of all, I'm very impressed with the two young women who have been speaking, and I think sometimes the experts get tainted. If I was the leagues, I would take them and I'd create a rules structure that's going to work. And by the way, fining multimillionaires doesn't usually solve anything. You've got to have a system that actually works and changes their behavior. And I think sometimes it's going to take the public to do that.

(APPLAUSE)

BATTISTA: Well, Jim pointed out during the break that the problem with the rule structure is that you can't always make a rule for every scenario.

WASHINGTON: Absolutely, Bobbie. I think during the break, the gentleman in the back here made a comment about how do you -- how can you have rules or laws in place for things that you don't expect to happen. And I think, just like the criminal justice system, it has evolved over the years to address issues that come up that have not expected. Such is the case in professional basketball or sports in general. You address issues as they happen. You cannot have a law or rule in place for something that you don't expect to happen within reason. I mean, we've tried our best to put rules and laws in place to address issues, but there's always something that's going to come up that's unexpected that you're not prepare for. But once it happens, then of course you need to address it and put something reasonable in place.

The issue that we're talking about here now, of course, is -- it's a little scary in that we're looking at the legal system stepping into professional sports or sports in general and dealing with the professional athlete without having a rule in place to address the actions that take place on the field of competition. And I dare say that's a big challenge.

MALZBERG: But, Bobbie, there is a rule in place for what McSorley did. He's been suspended and given the longest suspension in NHL history. I think the key here is that victim of the so-called assault is not looking to press charges. And I think, you know, in most cases, somebody who's a victim of a crime, if they're not interested in pressing charges, the prosecutor won't even bother unless it was so obscene. I mean, in Vancouver, I hope he's willing to prosecute baseball players if they fight on the court because it happens with the Knicks and The Heat and other teams all the time.

BOCK: He was not pressing charges because obviously charges had been brought against him. And, yes, he was fined and he was suspended for what he did within the realm of hockey. This went beyond the realm of hockey. This became a criminal incident.

BATTISTA: I got to take a break. Back in a moment.

MICHAEL: Hi, my name is Michael Johnson from American University and I would like to say that involuntary roughness is inherent in the game of basketball. But if Coach Durbon supported Tony Limon's actions, he was completely out of line.

(COMMERCIAL BREAK) BATTISTA: Well, the audience could keep talking about this for quite some time. Unfortunately, we are out of it. So I'd like to thank all of my guests. Jeff Jacobovitz, thank you for joining us. Art Taylor, Jim Washington, Beaux Bock, thank you all for joining us. Appreciate your time.

Have a great weekend, everybody. We'll you again on Monday.

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