Introduction

The term "enforcer" does not appear in the 2007 – 2008 NHL rulebook. However, every player, coach and manager knows what that term means. With most of the sports world focused on the Mitchell Report and the Rogers Clemens’ defamation lawsuit filed against his former trainer, little attention has been given to what will most likely become one of hockey’s most famous lawsuits if not its most notorious. Steve Moore, former Harvard captain, and his parents have sued NHL tough man Todd Bertuzzi, the Vancouver Canucks and the partnership which owned the Canucks for an on-ice incident which occurred between Moore and Bertuzzi on March 8, 2004. Dedicated fans have followed the lawsuit but with the ‘incident’ almost four years old many have forgotten about the vicious hit Bertuzzi rendered to Moore. However, the legal bickering is now gaining speed and a trial is within the litigants’ foreseeable future, most likely twelve to eighteen months away.

The Moore-Bertuzzi Incident

The dispute between Moore and Bertuzzi actually began on February 16, 2004 when Moore checked the Canucks captain, Markus Naslund in a regular season game between the two clubs. As a result of the check, Naslund received a concussion, facial lacerations and suffered soreness to his wrist. No penalty was called on Moore and after a review by the NHL the hit was ruled a clean hit. Naslund missed three games as a result of the hit by Moore. The next game scheduled between the two teams was March 3, 2004. Leading up to the March 3, 2004 game Todd Bertuzzi made several statements to the effect that he or his teammates or both would retaliate against Moore. In fact, the threat became so publicized that NHL Commissioner Gary Bettman and Executive Vice President and Director of Hockey Operations of the NHL, Colin Campbell, attended the March 3, 2004 match. However, no retaliation took place in that game. Bertuzzi was questioned after the game about why nothing occurred and he said that the game was too close but other situations would present themselves.

The final regular season game between the two clubs was played just five days later in Vancouver, British Columbia. Moore’s parents were watching the game from their home in Ontario. Although the commissioner was not at the March 8, 2004 game there was still concern by the league that an incident might occur. The NHL director of officiating contacted the game officials and warned them about possible retaliation against Moore. The Avalanche took an early 5 – 0 lead. With the score 7 – 2 in the final period the Canucks were in the middle of a line-change when Bertuzzi confronted Moore. When Bertuzzi tried to get him to fight, Moore merely skated away. Bertuzzi continued to follow Moore the length of the ice and halfway back up the ice in the opposite direction. Bertuzzi finally struck Moore from behind dropping him to the ice face first.

(Select Read More to read the rest of this article)

Click to see Bertuzz/Moore incident

Moore remained unconscious on the ice for some time and was taken to the hospital. He sustained massive injuries as a result of the assault including a broken neck with fractures to the C3 and C4 vertebrae and a T1 avulsion fracture. He has not played in the NHL since the incident. Bertuzzi was suspended for the rest of the season. The Canucks were fined $250,000 by the league. After the assault Gary Bettman said, "the message we’re sending is that this not part of our game, it has no place in our game and it will not be tolerated in our game." The NHL eventually reinstated Bertuzzi after a seventeen month suspension. Bertuzzi came back to the NHL at the beginning of the 2005 – 2006 season. The NHL did not play the 2004 – 2005 season due to a labor dispute. The suspension cost Bertuzzi more than $500,000 in salary and $350,000 in endorsements.

The Lawsuit

Bertuzzi was charged with assault by Canadian authorities and eventually pleaded guilty to "assault causing bodily harm" on December 22, 2004 in British Columbia. Steve Moore gave a victim impact statement which is common in criminal cases. Steve Moore’s Victim Statement is available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1103806928681_237. Bertuzzi received a conditional discharge and was ordered not to play in any sporting event in which Steve Moore was participating. He was also ordered to perform eighty hours of community service. Bertuzzi expressed remorse over the incident.

I wish that day had never happened. I had a lot of sleepless nights trying to think of things. I’m a firm believer in second chances. If we’re going to go through life not giving anyone second chances what kind of life are we going to have around here? People make mistakes in life. I was under the microscope and on TV when my mistake happened. If I’m going to sit here and keep getting ridiculed about it, how are we ever going to give someone a second chance to become better or to change situations?

Bertuzzi said he tried to contact Moore at least ten times but Moore never reciprocated. Moore did eventually respond by filing a civil lawsuit in the State of Colorado against Bertuzzi and several others including the Vancouver Canucks forward Brad May, former Canucks coach Mark Crawford, former Canucks general manager Brian Burke, the Canucks team and the partnership which owned the team. The lawsuit was eventually dismissed in October 2005 for lack of jurisdiction.

Moore then filed a second lawsuit in the Ontario Superior Court on February 15, 2006 while Bertuzzi was in Italy playing for team Canada at the Winter Olympics. The lawsuit was filed one day before the two year statute of limitations was set to expire. The second lawsuit did not include former Canucks coach Mark Crawford nor did it include Canucks forward Mark May.

This lawsuit presents a major legal showdown because Bertuzzi has filed a cross-claim against the Canucks and they have filed a similar cross-claim against him saying each one is responsible for the injuries that Steve Moore suffered. To add to this dilemma, Bertuzzi now plays for the Anaheim Ducks, after quick stops with the Florida Panthers and the Detroit Red Wings. Brian Burke, a defendant in the first lawsuit filed by Moore was the general manager of Vancouver at the time of the incident between Moore and Bertuzzi, and is now once again reunited with Bertuzzi in Anaheim, where he is the general manager. Moore then filed another lawsuit against Bertuzzi claiming five weeks after Bertuzzi's attack, Bertuzzi's house which has an estimated value of $1.2 million, was transferred to his wife, Jackie Bertuzzi for $2 million. Moore’s lawsuit stated the sale of the house was Bertuzzi’s way of making himself "creditor proof".

The case has now been proceeding through discovery. Just recently excerpts from depositions in the civil case were disclosed to the public. In his deposition Bertuzzi states that former Canucks Coach Mark Crawford indicated that Moore must pay a price. Bertuzzi’s deposition included the following exchange:

Q. And as I understand in the dressing room there’s a board and it has the roster of the opposing team, it has all their names and numbers?

A. Yes there is.

Q. And by, when you say pointing, pointing at my client on the board, that he’s actually pointing to Steve Moore, number 36?

A. Yes he was.

Q. All right, and can you tell me what his tone of voice was when he said it?

A. He wasn’t obviously very happy, I think he was pissed off at everything that was going on to begin with. So obviously he was pretty angry.

Q. All right, and did that play a role in your decision to go after Steve Moore in the third period?

A. I think it influenced him being challenged by a lot of players yes.

Deposition of Todd Bertuzzi Q. 553 – 556, excerpts of the deposition is available at http://www.thestar.com/Sports/Hockey/article/286925

If Mark Crawford is found to have played a role in the incident then the NHL will be hard pressed to not take substantial action against Crawford. The league has clearly shown their distaste for Bertuzzi’s actions. To be consistent they would be required to take action against Crawford as well.

Much of the discussion circulating around the Moore lawsuit has been that of hockey’s unwritten rule dealing with enforcers. Hockey has always had its share of enforcers or "goons" that have protected star players. The Moore lawsuit challenges those rules. There have been "participant versus participant" lawsuits in many other sports but only in hockey has fighting been generally considered part of the game. NHL Commissioner Gary Bettman has stated, "I’ve always taken the view that [fighting] is a part of the game and [fighting] rises and lowers based on what the game dictates."

Participant v. Participant Liability

One of the legal issues in the case will certainly be whether Moore consented to the assault. Consent can be a defense to an assault case. However, based on Bertuzzi’s own testimony, that Moore refused to fight him, it certainly seems that a consent defense might not be viable under the facts of this case. Could it be argued that Moore assumed the risk of any injuries he sustained in the hockey match? In Regina v. Green, [1971] 1 O.R. 591, the court stated:

No hockey player enters onto the ice of the National Hockey League without consenting to and without knowledge of the possibility that he is going to be hit in one of many ways once he is on that ice. Thus, it is difficult, apart from unprovoked savage attacks resulting in serious injury, to envisage circumstances resulting in serious injury where an offence of common assault, as opposed to assault causing actual bodily harm, could readily stand on facts produced from incidents occurring in the course of a hockey game played at that level.

Furthermore, "Players of contact sports impliedly consent to the ordinary risks of the game so that no assault is committed when a blow is reasonably incidental to play." Canadian Encyclopedic Digest, Sports, ß84, citing to Wright v. McLean, [1956] 1956 CarswellBC 139. "Assault may be committed when participants strike deliberate and unnecessarily violent blows to playing opponents." Canadian Encyclopedic Digest, Sports, ß84, citing to Gagne c. Hebert, [1932] 70 Que. S.C. 454.

In McKichan v. St. Louis Hockey Club, L.P., an IHL goalie sued for injuries he sustained from a severe body check by an opposing player. The Missouri Court of Appeals reversed the lower court’s decision finding for the defendant stating:

Rough play is commonplace in professional hockey. Anyone who has attended a professional hockey game or seen one on television recognizes the violent nature of the sport. In order to gain possession of the puck or to slow down the progress of opponents, players frequently hit each other with body checks. They trip opposing players, slash at them with their hockey sticks, and fight on a regular basis, often long after the referee blows the whistle. Players regularly commit contact beyond that which is permitted by the rules, and, we are confident, do it intentionally. They wear pads, helmets and other protective equipment because of the rough nature of the sport….

In summary, we find that the specific conduct at issue in this case, a severe body check, is a part of professional hockey. This body check, even several seconds after the whistle and in violation of several rules of the game, was not outside the realm of reasonable anticipation. For better or for worse, it is "part of the game" of professional hockey. As such, we hold as a matter of law that the specific conduct which occurred here is not actionable.

In a 2004 Virginia Court of Appeals case a hockey player received workers’ compensation for injuries he sustained in a fight, the court finding that the player was instructed by his coach to start a fight. Therefore, the injuries arose out of his employment and he was entitled to receive workers' compensation benefits:

Indeed, in the case at bar, the evidence established that, at the time claimant was injured, he was performing a task that he was employed to perform. The commission found that fighting is an integral part of the game of hockey and that claimant's job on employer's hockey team was to be an "enforcer." This conclusion was supported by the deposition testimony of Lawrence J. Landon, Executive Director of the Professional Hockey Players' Association, who stated fighting is a part of hockey and is not prohibited by the league. He testified that the league rule on fighting is just a "policing mechanism or control mechanism because [fighting] is allowed." He said, "All fighting is part of the game." He also testified that, in fighting, claimant was doing what he was paid to do; that injury due to fighting is a foreseeable risk for any player in any game; and that games without fighting are the exception rather than the rule. The evidence also included claimant's testimony that his coach told him to "go get" a particular player on the opposing side, which claimant understood to mean, "go fight him." Although employer argues that claimant's fighting constituted willful misconduct, employer failed to rebut the evidence that fighting was a part of claimant's employment.

Norfolk Admirals v. Jones, Court of Appeals of Virginia, Record No. 0050-05-4, November 1, 2005;

Other sports have had their share of lawsuits where participants have sued one another for injuries sustained by an assault from one player to another. In 2005 NFL player Bill Romanowski settled a lawsuit for $415,000 arising out of an incident which took place during a practice with a teammate in 2003. Romanowski was sued by former teammate Marcus Williams whose career was ended after his eye socket was broken by Romanowski. The case was heard by a jury in March 2004 and ordered Romanowski to pay Williams $340,000 in damages. The NBA had "the punch" which was thrown by Kermit Washington and received by Rudy Tomjanovich. In that case Tomjanovich sued the Los Angeles Lakers and convinced a jury to return a $3.25 million verdict due to the great legal arguments of attorney Nick Nichols. The Tomjanovich case was the first successful civil litigation case that prevailed in a "participant versus participant" situation. In baseball, Dodgers catcher John Roseboro sued Giants pitcher Juan Marichal after Marichal hit him in the head with a baseball bat. The matter was eventually settled for $7,500.

Conclusion

Hockey is the only major sport where the commissioner has stated that fighting is actually part of the game. Given that statement, Moore’s lawsuit is more daring than in other major sports. Moore clearly believes that Bertuzzi actions were beyond the scope of the game and were not in the best interest of hockey:

Hockey is Canada’s national sport. Canadians identify themselves through their national sport and take enormous pride in it. Bertuzzi’s actions and conduct tarnished the reputation of hockey and Canada’s image internationally.

As Canada’s national sport, hockey has become an integral part of everyday life for millions of Canadian children who are themselves involved in the multi-level hockey leagues throughout the country. Hockey training and play throughout Canada is aimed at building character, discipline, skill, integrity, a sense of fair play, fun and respect. It represents core Canadian values. Canada’s youth look up to their hockey heroes in the NHL as role models and expect them to uphold these important principles. Bertuzzi was indifferent to the impact his actions had on the important values hockey in Canada was intended to instill for those who play and watch the game.

See Moore’s Statement of Claim, February 14, 2006, p. 17; http://www.cbc.ca/bc/news/060215_bertuzzi.html.

The Moore lawsuit is a complicated web for the lawyers. A player would consent to injuries suffered during the course of the game that are associated with the game. Could Bertuzzi's actions be considered to be beyond "the scope" of the game? Are his actions those that might be normally anticipated during a game? Those will be the questions for the jurors if the case is not settled prior to a trial.

The NHL understands the significance of the case. In December 2006 the NHL brokered a meeting with all parties to the lawsuit. The commissioner of the NHL was present at that meeting. At that meeting lawyers for Bertuzzi and ORCA Bay Sports and Entertainment made an offer to settle the case for $350,000. Steve Moore’s lawyer, Tim Danson said the offer "was calculated to be an insult and was an insult." Not only will the plaintiffs have to settle with Steve Moore but they will have to settle with Moore’s parents as well on their negligent infliction of emotional distress claims against Bertuzzi. The NHL has a lot at stake in the outcome of this lawsuit. Moore most likely will never play hockey again and suffered a broken neck. He has showed his intentions by filing another case in Ontario after the Colorado case was dismissed for lack of jurisdiction. Moore has also showed he is serious about putting himself in a position to collect against Bertuzzi in case the jury does find in his favor.

The NHL can be an acquired tasted for Americans but for Canadians it is their national sport. For a sport without a major television contract and still to some extent, feeling the effects of a recent labor strike, a major lawsuit between players, a team and a coach resulting from the broken neck of a player is not a positive step. On January 21, 2008 an Ontario court will rule on whether there is enough evidence to move forward against Mark Crawford. Hockey is a relatively simple game; put the puck in the net. The same can clearly not be said for this sticky legal mess.

REFERENCES

Associated Press, Bettman worried about player safety and injury, ESPN.com, March 26, 2007.

Basu, Arpon, NHL Enforcers, The Rough and Tough Guys of Hockey, Overtime Books, 2006

Bernstein, Ross, The Code: The Unwritten Rules of Fighting And Retaliation In the NHL, Triumph Books, 2006.

Bertuzzi back on ice, wishes Moore well, CBC Sports, August 16, 2005.

Bertuzzi Offer Rejected, Newsday, Sec. SPORTS, November 7, 2007.

Diamos, Jason, N.H.L. Reinstates Canucks’ Bertuzzi, New York Times, August 9, 2005.

Kelley, Jim, Tough Times, Bertuzzi hit claim a PR nightmare; union changes tune, SI.com, December 6, 2007.

Marder, Jennifer, Should The Criminal Courts Adjudicate On-Ice NHL Incidents?, 11 Sports Law. J. 17, Spring 2004.

McCarthy, Michael, The fight game: NHL’s rules of engagement, USATODAY.com.

Moore v. Bertuzzi, [2006] Ont. Super. Ct., Statement of Claim, February 14, 2006.

McKichan v. St. Louis Hockey Club, L.P., 967 S.W.2d 209 (Mo. Ct. App. 1998).

Moore files lawsuit against Bertuzzi, Canucks, CBC Sports, February 18, 2005.

NHL.com, Players, Todd Bertuzzi.

Norfolk Admirals v. Jones, Court of Appeals of Virginia, Record No. 0050-05-4, November 1, 2005; http://www.courts.state.va.us/opinions/opncavwp/0050054.pdf.

Oh, Tracey, From Hockey Gloves To Handcuffs: The Need For Criminal Sanctions In Professional Ice Hockey, 28 Hastings Comm. & Ent. L.J. 309, Winter 2006.

Order of District Court, City and County of Denver, Colorado, Case Number 05CV1172; http://www.law.du.edu/hyatt/Civil%20Procedure/Moore%20v.%20Bertuzzi%20Order.htm.

Portions of deposition transcripts of Todd Bertuzzi and Dave Nonis (available at http://www.thestar.com/Sports/Hockey/article/286925).

Regina v. Todd Bertuzzi, 2004 BCPC 0472, Proceedings at sentence before the Honorable Judge H.F. Weitzel.

Steve Moore’s Victim Statement (available at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1103806928681_237).

Timmer, John, Crossing The (Blue) Line: Is The Criminal Justice System The Best Institution To Deal With Violence In Hockey?, 4 Vand. J. Ent. L. & Prac. 205, Spring 2002.

Westhead, Rick, Hockey; Bertuzzi Suspended For Season And Playoffs, New York Times, March 12, 2004.

www.hockeygoons.com.

2007 – 2008 National Hockey League rules available at http://www.nhl.com/ext/0708rules.pdf

Patrick K. Thornton is a Professor at Houston Baptist University where he is the faculty advisor for the MBA in Sports Management. He also teaches “Baseball and the Law” at the University of Houston Law School and Sports Law at Rice University and South Texas College of Law.