Our last post was about whether the John Jay High School football players who intentionally hit a referee during a game could be found liable for the torts of assault and battery. As promised, we will now take up the racial slur issue and the defense of provocation.
Provocation is a defense to battery, but it is not a complete defense. Instead, it can be used to minimize the damages and it stems from the idea that a person should not be entitled to benefit from their own wrongful conduct. Or, in schoolyard terms: you started it.
To successfully prove the defense of provocation, if the case were pending in Tennessee, the two football players would have to prove the (1) the referee’s conduct was provocative; (2) the response to the provocation (the hits) were not wholly disproportionate to the offense offered (the alleged racial slur); (3) not enough time had passed between the hit and the alleged racial slur for them to cool off.
I believe most folks would consider a racial slur provoking. However, if this case were to go to trial, some jurors might be dubious that a racial slur was made. From reports that have surfaced, these two players had another reason to target the referee because he had ejected two of their teammates earlier in the game. And, some reports have suggested an assistant coach incited the players to get even with the referee for “cheating us”.
Although I personally view the players’ response as wholly disproportionate, for the sake of argument, let’s assume reasonable minds might differ on that point because the defense will likely turn on the first factor, as already discussed, and third factor, the cooling off period.
While I do not have any information on when the racial slur was allegedly made, we do know the two football players did not shove or hit the referee immediately after the alleged racial slur was made. Rather, they waited. At a minimum, they waited until they had returned to their on-field positions, waited until the referee had his back turned and waited until play began again. As such, their reaction does not seem like a heat of the moment response but rather a calculated one.
In our next post, we will discuss the tort of defamation. The referee, through his lawyer, has suggested he might pursue legal action against the two players because they defamed him by falsely claiming he made a racial slur.
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