Here is the February column I wrote for Hearts Talk, the fabulous Romance Writers of Australia magazine about all things writing. The column gives a few pointers on the laws of defamation, and is directed to writers who may be interested in this topic. So ... I hope the writers among my readers find it useful.
Novels that focus on elite athletes and their involvement in competitive sports (often contact sports like the various codes of football, or boxing and cage fighting) are increasingly popular. For this week’s column, I thought I’d look at some of the issues arising out of contact sports, and their legal implications. Can our characters injure someone else on the field all in the name of sport? What is the difference between a simple sporting transgression, and a serious assault?
1. Inherently dangerous games such as boxing. In the late 1800s, the courts took the view that unregulated prizefights threatened public interest in the maintenance of good order. But with more clearly defined rules, and growing popularity, boxing was ultimately held to be ‘a demonstration of sparring’ and therefore legal. Meaning boxing was seen as a skill, and not a criminal act. Today, boxing and other contests (such as kick boxing and wrestling) where it is likely one of the combatants will be injured, are regulated by legislation. For example, boxing in Victoria is regulated by the Professional Boxing and Combat Sports Act 1985 (Vic). You can find this legislation, and other State equivalents, on austlii.edu.au. Other sports have a regulatory framework too, but it is usually left to the governing bodies of the relevant sport, such as a football association, to regulate players and breaches of the rules.
2. Other contact sports such as football or basketball. The most relevant area of law here is assault. Assault laws can be civil (assault and battery) or criminal (assault), and deal with situations where there is an application of force without consent. These laws are relevant on and off the sporting field—but the law assumes that there is implied consent to most physical contacts in ordinary life (like bumping into someone accidently while getting onto a bus).
In a contact sport, what is the level of physical contact a player is taken by law to consent to? If the act occurs during the course of play, and in accordance with the rules and usages of a game, there will be implied consent. If however there is a malicious use of force that is intended to cause injury, or if the act is reckless (so the perpetrator doesn’t care whether it causes injury or not) there will be an offence.
During an AFL game, Victoria leaps for the ball and catches it. She loses her balance as she lands and bumps into Maria, who falls and breaks her ankle.
Victoria and Maria are participating in a physical or inherently dangerous sport, and Victoria was playing within the rules. Maria will be taken to have impliedly consented to physical violence and the injuries that might result.
David and Drew, playing AFL, leap for the ball at the same time. While still in the air, David elbows Drew in the head and breaks his jaw.
If the level of violence has gone beyond the rules and parameters of the game, it will potentially be illegal. But if there was simply an error of judgment on David’s part (for example, intimidatory conduct instead of a deliberate act or intent to harm), he might not be liable.
To sum up, there is a distinction between what happens on the field and what happens off it, but any person (or fictional character!) who goes beyond the rules while playing sport runs the risk of committing a civil or criminal offence.