LAUSANNE, Switzerland - Haven't we all thought about how easy it is in sports? Just go into the penalty box and the voice of conscience falls silent. However, it is not always so simple - especially not, if an action has major consequences on the opponent's health. The third and last instance Swiss Federal Court had to judge about a years dated case from the Swiss National League A. The message: Hockey players are responsible for their on-ice actions and breaches of the rules away from the ice too.
On October 31, 2000, an exchange between American Kevin Miller, who played for HC Davos, and Andrew McKim, a Canadian with the ZSC Lions created the controversy. Miller skated full speed from behind into McKim, just 0.38 seconds after the Lions forward scored a goal. Miller his opponent’s neck and head area with his elbow. Of course, the game was finished for both. Just after the collision, McKim's cognitive skills were so shaky he could not recall if he even had children.
And so a long debate started. Was it just an accident , or was it a cheap shot? The hit eventually forced McKim to resign as a hockey professional, having caused a traumatic brain injury and a sprain to the cervical spine.
Miller's life went on as normal. He continued his career after an eight-game suspension and a CHF3,000 ($2,700) fine from the National League and the appeal board of the Swiss Ice Hockey Association. He played two additional seasons with Davos, winning the championship in 2002 before moving back to play two seasons in American minor leagues and for the Detroit Red Wings. He even participated at the 2003 IIHF World Championship in Finland. After having retiring in 2005, Miller moved into the world of finance.
It is not the first-such case in Switzerland. Swiss-Canadian Misko Antisin, then with EV Zug, was also sentenced by the Federal Court in 1995 when he ended the career of former HC Ambri-Piotta Ukrainian Petr Malkov. Antisin had to pay a CHF5,000 fine and compensation for damages. In the NHL, the penalty that Todd Bertuzzi had against Steve Moore still haunts fans’ mind. A lawsuit is pending in that case.
The sentence against Miller is expected to be heavier than in Antisin’s case. Zurich’s prosecutor demanded a jail sentence of six month for grievous bodily harm caused by negligence. The District Court of Zurich sentenced him to three month imprisonment fully suspended and to pay CHF10,000 in September 2005.
The final sentence will also be the base of a civil process with claim for indemnification which could cost Miller a seven-digit sum. The result of the criminal proceeding could also cause a ban of his new profession. Consequently, Miller appealed the sentence, and HC Davos came to his defence with a press release, describing him as an exemplary, fair player. In March 2007, the second-instance Cantonal Court of Appeals of Zurich cleared Miller of all charges. It was decided that Miller’s action was not negligent and was not decisive that McKim crashed on the ice, causing the injuries.
Now it was McKim's turn to appeal. On this appeal, the Swiss Federal Court in Lausanne, did not agree previous sentence. On November 1, 2007, it was decided that the decision was in breach of Swiss Federal law and that Miller should be sentenced for indirect intentional, grievous bodily harm - a stronger judgement compared to the initial sentence.
Thus, the federal judge shared the same opinion with the hockey judges some years before. In contrast to both lower courts, the Federal Court also ruled that Miller did not only breach the principle of harming nobody but also the IIHF Rule Book which has been used as a part of the basis for decision-making, because it assured the orderly course of the game and stands for the safety of the players in their professionalism. It is now to the Cantonal Court of Appeals of Zurich, which has to re-examine the case and sentence Miller based on the Federal Court’s decision.
Of course, not every penalty in hockey have the same impact as Miller’s had to McKim, but the ensuing court case could lead the way for similar cases, saying that the breach of a sports rule book can also cause liability of players who injure their opponents because of recklessness or carelessness. If such criminal prosecution is good for the protection of players or, as others might say, a defeat for hockey - is up for debate. It is, however, not surprising that the views normally diverge between followers of the accused and those of the victim.
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