Adam Johnson’s death hit ice hockey like an earthquake, devastating fans and fellow players, provoking an outpouring of emotion and raising difficult questions for the sport about safety.
The 29-year-old American died on October 28 following an incident during a cup match at Sheffield’s Utilita Arena between the Nottingham Panthers, Johnson’s team, and the Sheffield Steelers.
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With 8,000 fans in the venue and more watching online, his neck was cut by a skate and he later died in hospital.
Those facts remain as shocking now as they were when the tragedy happened three months ago this Sunday.
But, on November 14, there was an aftershock: South Yorkshire Police arrested a man on suspicion of manslaughter.
Under UK law, arrested suspects are usually not named until charged (not all suspects are charged) and that is why comments are off on this article.
That, however, is where usual ends for this case.
In a story The Athletic published the following day, when the individual was released on bail while the police continued its investigation, we quoted Patrick Maguire, a partner at Horwich Cohen Coghlan Solicitors. He explained that there are various types of manslaughter, but the most likely one being considered here is what is known as “unlawful act manslaughter”, where someone is killed unintentionally after something has been done that caused their death.
When asked if there is a precedent for a prosecution of this sort in British sport, Maguire said “no”.
Maguire was wrong, though, which is not surprising when you consider that the legal precedents he forgot were Regina v Bradshaw and Regina v Moore, with the “Regina” being Queen Victoria, who died in 1901. Both cases involved the player causing the fatal injury, though others involved in any way in the fixture could potentially be in the frame, too.
The first case is from 1874. William Bradshaw was a football (soccer) goalkeeper who collided with an onrushing Herbert Dockerty, kneeing him in the stomach. Dockerty died of his injuries the following day and Bradshaw was charged with manslaughter. The referee did not even award a foul and Bradshaw was cleared by the judge, too.
The second case dates back to 1898. Moore was a football defender who pushed an opponent from behind into the knees of a leaping goalkeeper. The opponent also died from his injuries but, unlike Bradshaw, Moore’s actions were deemed to be wilfully violent and he was found guilty, although his sentence was suspended on account of his previous good character.
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Yes, there have been plenty of examples of footballers and rugby players charged with assault for incidents that took place off the ball — there was even a manslaughter conviction in 2009 for an amateur footballer who killed someone in a fight after a match. But, as Luis Suarez will attest after he bit Branislav Ivanovic during a Premier League match in 2013, the British authorities have been reluctant to police “on-the-ball” incidents.
“By and large, anything that takes place during the game is dealt with by the sport,” explains Mark James, a professor of sports law at Manchester Metropolitan University. “The criminal authorities have usually only got involved when the incident in question occurred outside the game — an off-the-ball punch or head butt — or when the incident has gone way beyond the normal playing culture of the game.”
That last point is as fundamental now as it was in the late 19th century, as it relates to what we all implicitly consent to when we play the games we love.
‘In the UK, there is not much experience of ice hockey’s culture’
In the statement issued on November 15, detective chief superintendent Becs Horsfall said her force’s investigation had involved “speaking to highly specialised experts” in an attempt “to piece together the events that led to the loss of Adam in these unprecedented circumstances”.
According to James, these experts will be current and former ice hockey players, coaches, referees and administrators.
“If you think about ice hockey, pushing, tripping and even fighting happens quite regularly and they are all against the rules,” he says.
“They are, however, part of the game’s culture. Does this incident go beyond that? The police and Crown Prosecution Service (CPS, which decides which cases should be prosecuted in England and Wales) will be looking to establish whether there was deliberate contact, with intent to cause some harm, that has caused serious injury. That’s the test.”
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Adam Pendlebury, a senior lecturer in law at Edge Hill University, agrees with James but notes a potential problem.
“In the UK, there is not much experience of ice hockey’s culture,” says Pendlebury.
“I put sports in three categories. There are sports like netball, which are non-contact. Then there is a larger group where there is an inherent risk of contact — sports like football and rugby. And finally, there are combat sports, where contact is basically the whole point and a participant’s consent must stretch to the possibility of serious harm. Ice hockey is in the middle group, but it’s different to football, just as football is different to rugby.
“There is almost no case law for ice hockey incidents in the UK. The only case I can find ended up at Preston Crown Court in 2004. It seems like it was a fairly typical fight but one player went too far and threw too many punches. It resulted in a conviction.
“In looking for precedents, the best jurisdiction for us would be Canada, as the legal systems are similar and there are lots of cases to look at.”
Pendlebury points to two in the late 1980s that help illustrate how important the concept of playing culture is when considering what may and may not be criminal. There are later, more high-profile examples from the NHL — notably Marty McSorley being found guilty of assault after striking Donald Brashear on the head with his stick in 2000 — but Pendlebury cites the two which follow as the legal precedents, i.e. the cases which have informed subsequent rulings.
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In the first, a player called Roger Cey cross-checked an opponent from behind into the boards, causing the player to suffer facial injuries and whiplash. Cey was charged with assault but was initially acquitted, only for the prosecution to appeal against the verdict. He was found not guilty.
In 1989, the Court of Appeal in Saskatchewan agreed with the view that although some degree of contact is part and parcel of the game, there is a limit to the amount of violence anyone can consent to and a retrial was ordered.
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That last point is hugely significant as sport provides an exception in terms of the physical contact we will tolerate, but not a cast-iron exemption from legal prosecution.
The second case, also in 1989, involved Dino Ciccarelli, a future National Hockey League Hall-of-Famer who became the first player to be sentenced to prison for an on-ice altercation when he was convicted of assault for striking an opponent’s head with his stick. The key factors for the judge were that using your stick to hit someone around the head is never acceptable, the incident occurred after the referee’s whistle and Ciccarelli was exacting revenge for an earlier challenge.
His punishment was a $1,000 (£600 in 1989) fine and one day in jail.
“So, broadly speaking, punching is part of the game’s culture, but hitting someone with the stick isn’t,” says Pendlebury. “But the Canadian courts also came up with some criteria for deciding whether the incident was in the culture or not. They looked at the nature of the act and when and where it occurs in the game. Another consideration is the accused’s state of mind.”
Implied consent — what is just ‘part of the game’?
In English and Welsh courts, the most cited precedent is the 2004 Court of Appeal ruling on the Crown versus Barnes. This involved an amateur football match between local rivals Minster FC and The Punch & Judy in the Thanet and District Saturday League in December 2002.
Late in the game, with Minster leading 2-0, their forward Christopher Bygraves took the ball towards the corner flag to waste time. Defender Mark Barnes fouled him and words were exchanged. A few minutes later, Bygraves sealed the game with a left-footed finish but, just as he was kicking the ball into the net, Barnes slid in from behind, making contact with Bygraves’ right ankle.
The challenge left both men on the ground and Bygraves with a serious leg injury. Barnes jumped up and was heard to say “have that”.
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A jury found Barnes guilty of inflicting grievous bodily harm after a four-day trial in 2003 and he was sentenced to 240 hours of community service and ordered to pay £2,609 in compensation.
But the conviction was overturned because the judge in the first trial failed to explain to the jury that there are some actions in a sporting contest that can be against the rules, as Barnes’ tackle was, but are not serious enough to be considered criminal.
“With this ruling, (former Lord Chief Justice) Lord Woolf set out the principles of implied consent and sporting culture,” explains Pendlebury.
“He made it clear that just because an incident resulted in a booking, or even a sending-off, it is not necessarily outside the sport’s culture.
“When I teach this subject, I talk about narrow and wider consent. Narrow consent would be all the things that are against the rules but are fairly typical — getting tripped up in football or a high tackle in rugby. Sport simply couldn’t exist without that.
“Wider consent would be the more serious incidents that still sit within the game’s culture.”
James puts it like this: “Implied consent goes hand in hand with the playing culture. When you play sport, you consent to all the contact that is part of that sport’s culture. If you are playing football, you have consented to every trip, push and pull that is associated with the game.”
Lord Woolf’s ruling in the Barnes case has set a high bar for the CPS to intervene in sporting matters, as the number of sporting incidents to reach the criminal courts has reduced to the weakest of trickles.
For example, Suarez biting Chelsea’s Ivanovic in 2013 brought the Liverpool striker a 10-match suspension but no problems with the police, just as Wigan Warriors prop Ben Flower was not prosecuted for punching a defenceless Lance Hohaia, playing for St Helens, during the Super League Grand Final in 2014. Flower was, however, given a six-month ban, a record for English rugby league.
“The CPS chose to leave it at that, partly because rugby league has relatively sophisticated disciplinary procedures, as does rugby union and football,” explains Pendlebury.
“This applies to the amateur versions of those sports, too. Players who commit serious offences are dealt with by their governing bodies in a transparent way — you can search online for the details of any bans, for example.”
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Another example of the reluctance to encroach in sporting cases occurred in 2006 when Manchester City defender Ben Thatcher elbowed Portsmouth’s Pedro Mendes while challenging for a ball that was going out for a throw-in. Greater Manchester Police looked into the incident, which sent Mendes to hospital, but Thatcher was not charged.
At the time, it was widely believed that Thatcher was spared criminal proceedings for two reasons: first, the incident was considered to be “on the ball” (a generous interpretation in the eyes of many), and second, he was given a significant sanction by the Football Association — an eight-game suspension with a further 15-game ban suspended for two years.
The legal significance of whether an incident is on or off the ball can be seen in some of the most famous criminal cases involving footballers.
In 1988, Chris Kamara became the first professional footballer to be convicted of committing grievous bodily harm when he punched Shrewsbury’s Jim Melrose after the final whistle. The punch broke Melrose’s cheekbone and Kamara, who was playing for Swindon Town, was fined.
Six years later, Duncan Ferguson became the first British footballer to be jailed for an on-field incident when he headbutted Raith Rovers defender John McStay after an off-the-ball tussle. The Rangers striker, now manager of Inverness Caledonian Thistle, would serve 44 days of a three-month sentence.
And then, in 1995, came perhaps the most notorious off-the-ball incident in English football history: Manchester United star Eric Cantona kung-fu kicking a Crystal Palace fan who had come down to the first row of the stands to taunt the Frenchman after a red card.
“With Ferguson, the ball was out of play,” says Professor James. “Cantona? You can’t get much more off-pitch than kicking a fan.”
“The main question will be whether (the suspect) intended to do it,” says James.
“So, if you are wearing ice skates and you kick someone, can the prospect of harm be foreseen?” says Pendlebury.
“How would we expect the police to deal with this if someone had blades on their shoes and kicked someone else in the street? That’s easy, isn’t it? But we’re talking about a completely different setting and that issue of the sport’s wider culture. That’s why this is such a complex case.”
Major ramifications for contact sport?
“The arrest of a man on suspicion of manslaughter in connection with Johnson’s death was a highly unusual development, particularly given it happened in an elite environment and was akin to ‘on the ball’, in that the victim and injuring player were centrally involved in the action,” says Henry Goldschmidt, a London-based senior associate with global law firm Squire Patton Boggs.
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“But it is far too premature to draw any conclusions as to the legal implications, for instance, as to whether this may see a more interventionist approach by the CPS to incidents on the field of play.”
Goldschmidt, also makes the vital point that the investigation — and any criminal proceedings, should they be commenced — must not be prejudiced by public speculation or sensationalism.
It is a warning we have been mindful of in our reporting of this tragic story, with this piece only attempting to explain just how uncharted these waters are for ice hockey and British sport in general.
By coincidence, Goldschmidt published an article about “the uncomfortable relationship between sport and criminality in respect of conduct on the field of play” on his firm’s website three weeks before Johnson’s death.
Writing on his LinkedIn page in November, Goldschmidt said: “Against this backdrop, the arrest is as unprecedented as it is distressing. Writing the article, I could never have imagined that this very subject matter would be thrust into the spotlight so soon and in such devastating circumstances.”
The suspect has been bailed until early February, so there may be more to say in the coming weeks.
But there have already been major ramifications for the sport, with the English Ice Hockey Association making neck guards compulsory for all amateurs from the start of 2024. The International Ice Hockey Federation has followed suit, which means players will have to wear neck guards while competing at the Olympics and in World Championships.
Such measures, however, are not yet mandatory in the professional ranks, here or in North America.
Goldschmidt wonders if ice hockey will eventually respond to this incident in the same way cricket reacted to the death of Australian batsman Philip Hughes after he was struck by a ball on the neck in 2014.
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“It prompted equipment manufacturers to redesign helmets with a ‘stemguard’ (a piece of extra protection for the neck),” he explains. “The decision of the English Cricket Board to make it mandatory for professional cricketers to wear helmets while batting or fielding close to the wicket was largely attributable to Hughes’ death.
“Sadly, it can often take a tragedy to be a watershed moment so that others can benefit from a sport becoming safer in the long run.”
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(Top photo: Joe Sargent/NHLI via Getty Images)
