So… there’s been quite a bit of discussion in the wild about why a recent fight between NFL players of the Cleveland Browns and players of the rival squad the Pittsburgh Steelers did not result in criminal assault charges. The fight was broadcast to at least hundreds of thousands, I would imagine, very possibly millions. There were tens of thousands physically present at the scene and able to observe what happened and testify to it. Why, then, aren’t the participants being brought up on charges? Why were they not immediately arrested by sworn police officers present at the time?
Today this discussion was referenced by Mano Singham. And while I agree that there are reasons why we as a society might choose to prosecute the participants in these assaults, there are also reasons why we might not. One of those reasons is racism.
Wait, what? Yes. Racism.
For decades, NFL-style, “American-style” football has been criticized (accurately!) as a violent game. Yet for all those decades, such football has sparked violence that violate’s the sports rules and which might reasonably be interpreted as felonious assault at a much lower rate than ice hockey. For decades hockey in North America has been famous for bloody, bruising battles with sticks swung, skates kicked, and punches thrown that have nothing to do with the game or its rules on the in-game objectives of the players. And yet these violent assaults are almost never prosecuted.
While it’s reasonable to note that using helmet that one has removed from an opposing player to then attack that player is an escalation over, say, a barehanded assault since a weapon is involved. Set aside for a moment that bare handed assault is still a crime, albeit a lesser one than armed assault, but sticks and skates, used as they have been in ice hockey violence, also constitute felonious, armed assault. Yet there is a long history of ignoring such assaults that take place during or immediately before or after hockey matches.
As it happens, ice hockey players are much whiter than demographically average and much, much less black than demographically average for the populations of Canada and the US where NHL hockey is played. As it happens, an NFL player is much more likely to be Black than any random person selected from the populations of Canada and the US.
Given this, it’s clear that charging the Black player who swung a helmet is criminalizing Black men’s behavior that, as a society, we have been unwilling to criminalize when engaged in by white men. In fact, the white violence of the NHL is and has been a much bigger problem for much longer. Not only are fights more common (from what I understand), but weapons made from sports equipment are much more likely to be used in NHL violence. We literally excuse from criminal liability white men’s behavior that is worse, that is a problem both more frequent and, on average, more severe.
It’s certainly intellectually consistent for a person who advocated prosecuting the helmet swinger and who doesn’t know anything about hockey and its fights to respond to this information by asserting the hockey players should also face prosecution. This after-the-fact decision can certainly be persuasively used to argue that a particular individual is not racist. But the fact that as a culture we are publicly spending a huge amount of time discussing this NFL fight (which, by the way, caused no injuries) and its potential basis for initiating prosecutions shows that we as a culture are still racist. Some people knew about this disparity. Law review articles have been written about it. Sports enthusiasts know about it. Sports media who was responsible for initiating and propagating this discussion certainly knows about it. One can only conclude on this evidence that we are treating NFL violence and NHL violence vastly differently, and the racial disparity amongst both players and fan bases cannot be ignored when attempting to determine what this differential treatment says about us as a society.
We. Are. Still. Racist.
If we wish to prosecute players of sports for these types of crimes, we cannot, for the good of society, being with a Black NFL player without an intervening warning that our social policies have changed. If a local DA in charge of a jurisdiction with both an NHL team and an NBA or NFL squad announces today that in-game fights by professional athletes will now be prosecuted, then the first person who later commits such an assault should be prosecuted regardless of race. But prosecuting the Cleveland player for this particular infraction can only violate previously established legal norms and create a criminalization of Black men that society has shown itself unwilling to impose on white men.
That is simply unacceptable.