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Richard Sherman, Marcus Smart, and Booby Clark

The following post is written by Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar.  Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team.  We're pleased to have Joe's contribution.  He also authored the Sports Law Blog posts titled Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito? last November and What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

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The controversy surrounding Richard Sherman’s interview with Erin Andrews and Marcus Smart’s suspension for interacting with a fan, harkened me back to my first year Torts class.  While studying the distinction between negligence and recklessness, our reading assignment included the 1977 case Hackbart v. Cincinnati Bengals, Inc. and Charles “Booby” Clark,  435 F. Supp. 352 (1977).  The facts recounted how on an interception during an NFL game, Clark, a running back with the Bengals, elbowed Hackbart, a defensive back for the Broncos, in the back of the head, thereby shortening Hackbart’s career.

What jumped out at me from the opinion was the inclusion of testimony from Broncos Head Coach John Ralston on the level of aggression coaches intentionally cultivate in their players to produce a “controlled rage.”  Ralston testified that, 
The pre-game psychological preparation should be designed to generate an emotion the equivalent to that which would be experienced by a father whose family had been endangered by another driver who had attempted to force the family car off the edge of a mountain road.  The precise pitch of motivation for the players at the beginning of the game should be the feeling of that father when, after overtaking and stopping the offending vehicle, he is about to open the door to take revenge upon the person of the other driver.    
While Hackbart was a civil case regarding liability, the underlying premise remains that high level athletics (the National Football League, Big 12 basketball) is equal parts emotion and physicality.  Thus, when Richard Sherman did his best Clubber Lang impersonation with Erin Andrews, it was just a natural outflow of the “controlled rage” that most in the NFL live on in order to play a sport that is the equivalent of being in an automobile accident on every play.  What Richard Sherman says 30 seconds after a game has to be placed in different context to what he says one hour after a game.

Fast forward to Oklahoma State’s Marcus Smart, who was suspended Sunday by the Big 12 for “inappropriate conduct with a spectator” toward the end of their game with Texas Tech.  The Big 12 must have a pretty loose definition of the term “spectator.”   Much to the mortification of many basketball purists, high level collegiate basketball has become a contact sport, and no matter how often the officiating higher-ups produce “points of emphasis” (see this season’s cause celeb – the hand check), the game will continue in a rectilinear direction towards increasing contact. 

As Marcus Smart tripped over a camera operator, he ended up a few feet from Tech “super-fan” Jeff Orr.  In a two point game with just a few seconds left, Smart had just finished sprinting down court in an attempt to block a Tech layup.  He was called for a foul.  At this point, Marcus Smart’s mental state was probably not much different from that of Richard Sherman’s after Sherman deflected the game winning pass intended for Michael Crabtree. 

While I don’t condone Marcus Smart verbally engaging Jeff Orr, I don’t think the three game suspension was warranted.  A close inspection of the video shows that Orr made a quick upward gesture with his left hand in very close proximity to Smart’s face.  An argument could be made that Jeff Orr’s hand feign constituted an assault placing Smart in apprehension of imminent harm and his push of Orr was self defense.  Is it unrealistic to think that at that split second in time, Marcus Smart’s conduct was an outlier, even if he wasn’t 19 years old?   Unfortunately, it appears Smart’s discipline neglected to factor in “controlled rage” which major college and professional athletics regularly and handsomely cash in on.                

Joseph Kohm, Jr.

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