- Terry Frei, Special to ESPN.com
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To sue or not to sue.
The choice is Steve Moore's.
Last week at his hastily called news conference in Toronto, Moore said he was leaving open the option of filing a lawsuit against Todd Bertuzzi -- particularly if Moore, the former Colorado Avalanche winger, isn't able to recover and return to the NHL.
Moore hasn't retained Toronto attorney Tim Danson, noted for his victims-advocate crusades and cases, for a game of shinny. And Moore's palpable disgust at the plea-bargaining and sentencing process in Vancouver that culminated in Bertuzzi getting off with a conditional discharge makes a lawsuit more likely.
The Avalanche haven't offered Moore a new contract, but he wouldn't be able to pass the physical, anyway, and not receiving a contract offer could be cited as additional evidence of damages.
It's easy for us to sit here and say Moore should sue only as a last resort, or not sue at all, because of the implied-consent argument so many of us have advanced. It's easy because we're not suffering from post-concussion stress syndrome. We're not plagued by the lingering physical problems caused by Bertuzzi's attack from behind. We're not facing the likely end of a career. And we're not still flashing back to that night, when the first conscious moments after the attack involved foggy confusion.
But we'll say it again: Moore should only sue as a last resort. Clearly, though, he is a thoughtful, erudite man perfectly capable of weighing the alternatives and making a reason-based decision.
And, no, it won't be just about the money.
The case for suing
1. Others have done so.
And like Moore's potential suit, two of the notable NHL cases both involved exceptional transgressions -- rather than mundane, virtually common incidents
taking place on the ice that had unfortunate results.
Detroit's Dennis Polonich in 1982 was awarded $850,000 in his lawsuit against Wilf Paiement, who was playing for the Colorado Rockies at the time of his 1978 nailing of Polonich in the face with a stick.
Henry Boucha received a $3.5 million settlement from Boston's Dave Forbes, the Bruins and the NHL shortly before his lawsuit was about to go to trial in the 1980s. Boucha, then playing with the North Stars, suffered a crushed eye socket when Forbes nailed him with the butt end of his stick shortly after the two men came out of the penalty boxes in 1975.
Polonich and Boucha -- who both eventually returned to the ice -- have said they would have traded the money for not suffering the physical
problems that affect them to this day.
"I still have breathing impairment on the left side and I have disfigurement," Polonich said. "And the other issue is: What if? What kind of a career would have I had if it hadn't happened? Would I have played longer in the NHL? Would I have had better stats?
"I wasn't the same after. ... Before, I played with reckless abandon and I was ultra-competitive. My statistics will tell you that I never was the same."
Boucha recently told The Denver Post that he "had everything going for me, with a lot to look forward to. The next minute, I'm in an emergency room and
doctors are telling me I might lose my right eye."
The money helped.
2. Bertuzzi shouldn't be allowed to get away with an act that, if it occurred on the street with the same physical results, would have led to far more serious recriminations.
The light sentence he received from the British Columbia authorities is, at least from the legal point of view, allowing him to get away with it. His NHL suspension has cost him a lot of money, and he stands to lose much more if the league keeps him off the ice and the payroll after the lockout ends.
But there's something unseemly about such a blatant attack, and one with a long trail of rhetoric that could have been cited as premeditation, going virtually unpenalized within the legal system.
3. If the case goes to trial, the examination of the "code" will be a positive step for the game, especially north of the border.
Those continuing to cite the "code" as unalterable might have to acknowledge that modernization isn't always a horrible phenomenon,
especially when it involves messages being sent to kids.
Even those fanatic "code" loyalists agree that a sucker punch from behind is going too far, but then in the next breath, they often come off as if they believe Moore actually took a dive and drove his own head into the ice -- and/or -- that his own hit on Markus Naslund weeks earlier was the cheapest shot in the history of the game.
4. It could force the NHL Players' Association to stop worrying more about protecting the Bertuzzis than the Moores.
That's the most inexplicable aspect of the entire incident -- this baffling refusal to step forward and declare that it's not some sissification of the sport or a distortion of the union purpose to condemn heinous conduct. There but for the grace of God ...
The case against suing
1. If Moore sues, he will be ostracized, to degrees varying from portrayal as a whining marginal player who had it coming or couldn't take it; to a
victim of something that can't be excused, but should be accepted as the outgrowth of the fortunes of a rough sport that involves risk.
2. Especially if Moore files a suit before he has completely given up on returning to the ice, he can kiss goodbye his chances of ever playing in the
Even if he wants another contract, he would be blackballed. It might even be subtle or somewhat unintentional, but he would be blackballed nonetheless. That kind of shunning can be rationalized as a prudent personnel decision, because it's not as if Moore was destined for a long-term, elite career anyway, even before he was injured.
Boucha said he wasn't given much of a chance during his brief stint with the Colorado Rockies in the 1976-77 season because he had filed the lawsuit. (Ironically, Boucha was Paiement's teammate, playing in the city where Moore later would knock Naslund out of the lineup for three games.) Boucha ended
up in the WHA.
Polonich said he also "felt pressure" not to sue "because I was taking on the Establishment. Only my wife and I know what I went through -- the pain and
the suffering, the disfigurement. So when I look back, yeah, I did the right thing."
Moreover, there could be fallout reprisals against Moore's younger brother, Dominic, a fellow Harvard grad and a Rangers prospect.
3. Does Moore want to be remembered as the guy who helped unleash a more lawsuits? Don't laugh. Yes, the legal cases have been few and far between in the NHL, but in this increasingly litigious era, it's not absurd to expect that a Moore lawsuit could encourage others -- lawyers and players -- to go to ridiculous extremes in going to court. Even if it's just because the coffee was too hot in the dressing room.
4. Sports don't belong in the courts. Period.
The choices are neither easy nor simple.
Terry Frei is a regular contributor to ESPN.com. He is the author of the recently published "Third Down and a War to Go," and "Horns, Hogs, and Nixon Coming."
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