Cincinnati-Xavier: Why Bench-Clearing Brawls Are Rarely Criminally Prosecuted

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Cincinnati-Xavier: Why Bench-Clearing Brawls Are Rarely Criminally Prosecuted
Hamilton County prosecutor Joe Detters' decision not to file charges is a move that makes legal sense. Photo: ESPN

Earlier this week, Hamilton County prosecutor Joe Deters announced his department's intention not to file criminal charges against any players involved in last Saturday's Cincinnati vs. Xavier basketball game that ended in forfeit after a bench-clearing brawl.

Deters noted he was partially swayed by the disciplinary measures imposed by the schools, their conferences and the NCAA.

For Cincinnati, players Yancy Gates, Cheikh Mbodj and Octavius Ellis were each suspended six games. Ge'Lawn Guyn was suspended one game.

For Xavier, Dezmine Wells and Landen Amos were suspended four games, Mark Lyons was suspended for two games and Tu Holloway was suspended for one game.

As I have previously written, and despite some observers' contentions that the punishments were too weak, the length of these suspensions is comparable to past college basketball fight-related penalties.

In terms of cut-and-dry criminal law, several players involved in last week's brawl clearly could face assault charges, a first degree misdemeanor under Ohio code 2903.12.*

Had Xavier's Kenny Frease or another alleged victim's injuries been deemed "serious physical harm," a few players could have even faced aggravated assault, which is a felony of the fourth degree under 2903.13.

Then again, in terms of cut-and-dry criminal law, any player who threatens another player might be guilty of aggravated menacing, another first degree misdemeanor under 2903.21.

As far as criminal charges are concerned and especially in light of the fact that no one—not even Frease—was seriously injured, there really was no case against any one player.

Simon Bruty/Getty Images
Fans who invade the playing area are subject to arrest because the stadium itself does not give fans consent to intrude upon the field, pitch or court.

Simply put, assault is a threat or attempt to intentionally strike another with force without the other party's consent. Some statutes additionally define battery as the unwanted touching of another without consent.

With consent—as was the case in Cincinnati vs. Xavier—there is generally no crime.

Consent can be given directly or indirectly—it may be given as the result of an overt action such as a verbal cue or it may be implied by virtue of the situation in which the touch or strike occurs.

When the Cincinnati and Xavier players agreed to play a rivalry basketball game last week, they gave implied consent to be touched or struck with force and they assumed certain risks, one of which is the assumption of injury in the course of natural game-play.

However, this tort law principle of volenti non fit injuria does not extend to a one-sided fight taking place during a basketball game—unless both sides are participants in the brawl, as in hockey.

Volenti non fit injuria translates from Latin to English as "to a willing person, no injury is done."

For instance, a basketball player implicitly consents to being fouled quite severely while airborne. However, that same player does not generally consent to being kicked repeatedly while on the ground after being knocked down.

By virtue of both teams fully clearing their respective benches and the on-court players running into the scrum, it is clear that all players were willing participants in the fight as far as volenti and the consent standards are concerned.

Ezra Shaw/Getty Images
Though fighting is a routine part of hockey and the NHL, if a player were to use a hockey stick as a weapon or maliciously use his skates to seriously injure his opponent, that player would be subject to arrest.

Accordingly, not one brawling incident mentioned in my "Past Fights" slideshow resulted in criminal charges.

There is a spectrum of contact—somewhere along that spectrum from the minor, accidental jersey touch to the violent, gravely injuring kick to the neck, consent is lost.

The issue of precisely where to draw that fine line separating the two extremes is not as cut-and-dry as you might think.

Consent is ordinarily analyzed from the reasonable person's perspective, so wherever a reasonable person would draw the line, that's where consent ends and a crime begins. Because everyone has a different standard for what "reasonable" means, it is difficult to say exactly where that line exists.

Generally speaking, when both sides are willing participants and the playing field is fair, the law doesn't get involved.

On the other hand, when one party is completely unwilling or the fight becomes unfair, arrests can and will result.

In 2007, former All-Star Jose Offerman charged the mound in a minor league game—and used his baseball bat as a weapon.

By inning's end, the pitcher and catcher had sustained significant injuries and Offerman had been arrested, charged with two counts of second-degree assault.

Doug Benc/Getty Images
Though normal game activity in the NFL and football in general can cause severe injury, a player is rarely held responsible for playing within the rules, even if his devastating hit ends up seriously injuring an opponent.

Though a pitcher consents to some contact during the course of a game—which, in professional baseball, does include the occasional mound fight—no player consents to being the target of aggravated assault in which a baseball bat becomes a weapon.

Just this year, a soccer player punched a referee in response to a red card penalty given to a teammate. 

Sports officials in particular give a fairly small amount of consent because players and officials very rarely make contact with each other, even during game-play, and most of this contact is purely accidental.

Accordingly, the offending soccer player was arrested for battery on a sports official, which is a charge unique to California and 17 other states, six of which classify the first or a subsequent offense as a felony. Some of these laws also cover coaches, since their consent level, like a referee's, is lower than a player's.

Deters ultimately refused to prosecute the Cincinnati and Xavier players not only because the schools and conferences had already imposed their own sanctions, but because the severity of the actions which had taken place were not significant enough to merit criminal charges.

The NBA, NCAA and NFHS rulebooks all address fighting situations because fighting is a risk inherent in the game.

Even though a bench-clearing brawl at the non-professional level is extremely rare, it is not an unforeseen possibility and there is precedent for not levying criminal charges against players who willingly engage in fighting during the course of a basketball game.

Filing charges against the Cincinnati and Xavier players for their actions last week would have defied legal sanity and unnecessarily prolonged an embarrassing episode in college sports.

In the end, Deters made the fairly elementary and correct decision to drop the matter.

There was never much of a criminal case to begin with.

*This game took place in Ohio, so all preceding penal code citations refer to Ohio's state code unless otherwise noted.

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