By Emily Raven – Thompson Rivers University 2L JD Student
It seems that almost every week there is a new article in the news discussing an athlete that has been charged with Domestic Violence. Last month it was Australian rugby legend Hazem El-Masri. El-Masri, an ambassador for the anti-violence “White Ribbon” campaign, was arrested on Monday October 19th in his home in Sydney after attacking his wife who is 15 years younger than him. These headlines come with a disappointing and depressing regularity.
In the past ten years, 29 out of 32 NFL teams have dealt with players who faced domestic violence charges. Since 2006, in the NFL alone, 56 players have been charged with domestic violence. Sports leagues, governments and viewers struggle to cope with the increasing number of these incidents. Some scholars believe that this issue stems from athletics, especially contact sports such as football or Mixed Martial Arts. These are “High Violence Occupations,” so the environment is highly aggressive and can be a potential accelerator for domestic violence. However, athletes charged with domestic violence are not bound by any particular sport or gender.
So, who is best to respond to this social issue? Should viewers stop watching in protest? Not likely, although some may. Is the problem that domestic violence laws are too weak or that athletes aren’t prosecuted as harshly? Possibly. An obvious example of this is Ray Rice’s admission into a pre-trial intervention program, saving him from any jail time, probation or criminal record as long as he did not commit another offence. This was his punishment for knocking his girlfriend unconscious on video. The program that Rice was accepted into has a 1% acceptance rate. The laws in New Jersey are similar to those in Canada which steer first time offenders towards counselling rather than incarceration, especially when the victim stays in the relationship or refuses to testify. This was the situation in the case of Rice, whose victim is now his wife. What happened to Rice is not uncommon.
Is part of the answer to the problem of violence off the field tougher laws for perpetrators of domestic violence and new laws to protect victims? In New Jersey there is currently a bill before the legislature to allow domestic violence victims to testify via closed circuit video if the victim is too scared to testify in front of the abuser. The Canadian Criminal Code already has provisions that give trial judges discretion to allow testimonial accommodations (including testifying via closed circuit video, or with the aid of a screen) for vulnerable persons. This is a significant issue when the abuser has a high public profile as the media will likely hound the victim as well as the abuser.
Some believe that the solution lies within the sports leagues themselves. Professional leagues such as the NBA, NHL, NFL and MLB aren’t guided by the rules of criminal justice system. Instead they create policies and determine disciplinary outcomes for players using a combination of factors including Collective Bargaining Agreements, commissioners and arbitration rulings. Most professional leagues have general conduct policies, but some leagues have taken a step further to develop policies specifically for domestic violence.
The latest league to do so in August 2015 was Major League Baseball (MLB), which created a policy to address domestic violence, sexual assault and child abuse cases. The policy gives the commissioner ultimate power to determine a player’s punishment with no minimum or maximum and no precedents affecting his decisions. MLB teams have no say in the decision unless asked and the commissioner has the power to put players on a paid administrative leave for up to seven days before the decision is made.
Under this new policy, player and Player Association cooperation is mandatory. Players who wish to appeal their rulings must go before a three-person panel including an independent arbitrator. An interesting part of the policy is “Prior precedent and past practice of disciplining players for engaging in an act of domestic violence, sexual assault or child abuse may not be relied upon by a player to support a challenge to the severity of his discipline, but that all other disciplinary past practice and precedent will remain relevant.” In other words, a player can’t use the fact that these types of cases haven’t been fully prosecuted in the past as a defence.
The MLB’s policy has been criticized for being very similar to the inefficient NFL’s policy. However an important evolution to be noted in the new policy is that the MLB commissioner will not act as his own arbitrator; the MLB commissioner will have to defer all appeals to a three-person panel. This gives new meaning to the words “appeal” and “independent investigator” from the NFL policy. The MLB is also taking a step in the right direction from the NBA and NHL, both of which do not have policies specifically addressing domestic violence.
Is domestic violence perpetrated by professional athletes a societal problem that should be addressed with new and stricter laws or is it a problem best solved within the sports leagues? This is really a question of what governs a professional athlete’s conduct off the field – society’s laws or the professional leagues’ rules of conduct? Nobody, including a professional athlete is above the law. However, the MLB’s new policy may help to deter professional athletes from conduct that will bring them into conflict with the law. Only time will tell if this policy will help reduce the rate of domestic violence and other forms of abuse in the MLB.