Possible consquences of Marchand licking opponents

Hockey

The NHL rulebook is 229-pages long. It contains detailed rules and procedures about seemingly every kind of infraction. Well, not every kind: not once do the words “lick”, “licking”, “tongue” or “kiss” appear.

Enter Boston Bruins forward Brad Marchand. The 29-year-old has twice licked the faces of opposing teams’ players during this year’s Stanley Cup playoffs. First it was Toronto Maple Leafs forward Leo Komarov and then on Friday it was Tampa Bay Lightning forward Ryan Callahan.

While hockey players are in frequent—and often violent—contact, there is no tradition of them licking each other in the face. An on-ice lick, therefore, is sort of shocking. For that reason, an unexpected lick might offer the licker strategic value: it could “psych out” an otherwise composed player and throw him off his game. At the same time, the lick doesn’t violate any specific game rule. It is either genius or gross. Or both.

Marchand defended himself after the Callahan incident. He assured media that his lick was designed to deter Callahan from engaging in further violence. “Well, [Callahan] punched me four times in the face,” Marchand reasoned, “So, you know, he just kept getting close.” Although the expression “a lick is better than a punch” might not exist until now, they are words that Marchand seems to live by.

NHL justice and Rule 28

This is not the first time that Marchand’s mouth has attracted controversy. Marchand has kissed and attempted to kiss unsuspecting players at other points in his nine-year NHL career. Last November, for example, Marchand kissed Komarov while the two battled on the ice. Marchand, who has been suspended four times in his NHL career for other kinds of on-ice misconduct, has never faced discipline for unsolicited kissing and licking.

That may soon change: NHL senior vice president of hockey operations has notified Marchand and Bruins general manager Don Sweeney that discipline will be imposed should Marchand’s tongue stir more trouble.

Rule 28 of the NHL rulebook would be the authorizing source for the NHL to punish Marchand. Rule 28 is something of a catchall provision for unwanted, but not expressly prohibited, misconduct. It empowers NHL commissioner Gary Bettman to “investigate any incident” that occurs in a game and “assess additional fines and/or suspensions for any offense committed during the course of a game or any aftermath thereof by a player, goalkeeper, trainer, manager, coach or non-playing club personnel or club executive, whether or not such offense has been penalized by the referee.” In other words, the fact that there isn’t an NHL rule outlawing unwanted kissing and licking doesn’t prevent the NHL from punishing a player for engaging in such acts.

Not grounds for a successful criminal case or torts lawsuit

Some have wondered if Marchand’s licking could be considered not just an NHL rule violation, but a violation of the law, too. While licking another person without their consent could be considered an illegal act in some contexts, the context of a professional hockey game changes how the legal system treats the issue. With that in mind, do not expect Marchand’s situation to become a criminal or torts matter. Let me explain:

In certain settings, a lick could give rise to a disturbing the peace, criminal mischief, disorderly conduct or criminal harassment charge. Persons who are arrested after a fight or altercation are sometimes charged with such offenses. These offenses are relatively low-level and are often resolved without a jail sentence. A lick to someone’s mouth or face isn’t necessarily violent, but it can lead to the transfer of saliva and its accompanying germs, bacteria and viruses. For this reason the act could be considered unlawful.

In other contexts, a lick can give rise to a sexual assault charge. There are a number of cases involving one person sexually assaulting another and part of the assault includes unwanted licking. Proving such a charge requires proof that the defendant intended to commit a sexual act.

None of these potential criminal charges is applicable to Marchand’s situation. His actions were not sexual and while they could in theory be considered disorderly conduct, the same could be said of many things that occur during a hockey game. Indeed, take fighting: the legal system lets hockey players attack each other even though if these same players fought in a bar or on a street, they would be arrested. If players were arrested for what happens during hockey games, the sport would need to be greatly reimagined.

Also, Callahan—the latest “victim”—is clearly not interested in seeing Marchand charged. While Callahan has described the incident as “unfortunate,“ he stresses that Marchand’s licking hasn’t taken him or his team off their game. This seems right, as the Lightning eliminated the Bruins in Sunday’s Game 5.

Further, the legal system almost never prosecutes professional athletes for conduct that occurs during games. Consider when Tennessee Titans defensive tackle Albert Haynesworth stomped his cleats on the unprotected face of Dallas Cowboys center Andre Gurode in 2006. Despite causing Gurode serious injury to his face and vision, no criminal charges followed.

The rare prosecution of a pro sports incident has concerned very violent matters. For instance, in 1988, a Toronto judge sentenced Minnesota North Stars right wing Dino Ciccarelli to one day in jail for whacking Maple Leafs defenseman Luke Richardson twice in the head with his stick. As another example, Bruins defenseman Marty McSorley was tried and convicted in Vancouver for assault after he slashed Vancouver Canucks left wing in the head during a game in the Rogers Arena in 2000. These two injurious acts are clearly distinguishable from licking incidents. Along those lines, there is no record of prosecutors prosecuting NHL players for unwanted licking (or kissing) of opposing teams’ players.

Put simply, Marchand’s licking will not become a criminal matter.

The same is true of a potential lawsuit. It is safe to say that neither Komarov nor Callahan will file a lawsuit against Marchand for battery, intentional infliction of emotional distress or related claims. While both players may have been offended or even humiliated, filing a lawsuit over such feelings seems nearly implausible. NHL players have rarely sued each other. One exception involved former Colorado Avalanche forward Steve Moore suing Canucks forward Todd Bertuzzi in 2005 after Bertuzzi drove Moore’s face into the ice, causing Moore to suffer grave and career-ending injuries. The Bertuzzi and Marchand situations are completely unalike.

A lawsuit would also face serious hurdles. For one, there appears to be no actionable damages. While the licked players were annoyed, mere embarrassment and aggravation are not severe enough harms for a successful lawsuit. Also, NHL players encounter, and to some degree assume, numerous health risks on every shift. This has been made disturbingly clear through the class action brought by retired NHL players against the league over long-term neurological injuries. It would be difficult for players to argue that any injuries caused by licking should warrant court intervention.

Marchand has put his endorsement deals at risk

While Marchand won’t wind up seeing Komarov or Callahan in court, the controversy could nonetheless cause him legal problems. Marchand has signed endorsement deals with sports businesses over the course of his career. Last October, for example, New Balance announced that it had signed Marchand to an endorsement deal.

It is not surprising that Marchand’s endorsement of athletic apparel and equipment would carry weight. This is especially true in Boston, where Marchand has played his entire NHL career. Marchand is a two-time all-star whose his clutch play during the playoffs in 2011 helped the Bruins win the Stanley Cup for the first time in 39 years. He has also been a prolific goal scorer in recent years, tallying between 34 and 39 goals in each of the last three seasons. Further, Marchand plays with a distinctively high degree of grittiness and tenaciousness—critics say dirtiness and cheapness—that endears him to Bruins fans as much as it annoys other teams’ fans.

If the licking controversy damages Marchand’s “brand” in the eyes of the companies he has endorsed, those companies could contemplate invoking morals clause language in their endorsement deals. These days, such language is almost always present in endorsement deals with athletes. The language allows companies to suspend or exit endorsement deals if the athlete engages in unlawful or scandalous conduct. Companies have used such language to exit deals with Tiger Woods, Ryan Lochte and other athletes whose reputations tumble due to personal misconduct.

Would an endorsed company seriously consider dropping Marchand at this point? Probably not—especially if Marchand stops making face-to-face contact with other players. In that scenario, the controversy would likely pass and be mostly forgotten. Marchand’s coach, Bruce Cassidy, hopes Marchand uses other tactics. “If part of his M.O. is to annoy people,” Cassidy told NHL.com’s Dan Rosen on Sunday, “[he should] find a different way to annoy them, that’s basically what is in front of him now.”

Still, if Marchand’s licking persists as a problem and he becomes most identified as “that guy who licks other players”, companies who have reached deals with him might reconsider those relationships.

Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O’Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.

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