A man convicted of assaulting another man during a Manitoba Major Soccer League game four years ago is appealing the verdict on the grounds the incident was part of the game and not a criminal act.
Greg Adamiec, 26, was charged and convicted of assault causing bodily harm during a game in July 2009 between his squad, Team Polonia, and the Kildonan Cavaliers.
Adamiec collided with Cavaliers goalie Scott Keast, 35, as they both sought to control the ball in front of the Cavaliers goal. Keast had wrapped his arms around both the ball and Adamiec's legs. Adamiec kicked himself free, and in the process struck Keast several times in the chest and head.
The referee, Billy Senior, produced a yellow card on the play. Adamiec was cautioned and play resumed. However, Keast left the game shortly afterward as a result of the injuries he sustained during the contact.
Police were later called and an investigation began, which resulted in the charge against Adamiec.
At a two-day trial in December 2011, provincial court Judge Janice LeMaistre concluded Adamiec's actions went beyond the play of the game and constituted assault. She sentenced Adamiec to 12 months of probation and ordered him to pay Keast $1,500 in medical costs.
At an appeal hearing in the Court of Queen's Bench this week before Justice Christopher Mainella, lawyer Greg Brodsky argued the MMSL is a competitive league played by men and all the players, including Keast, give "implied consent" to a degree of violence and injuries.
Brodsky wants the guilty verdict thrown out.
Mainella reserved his decision.
Brodsky argued the trial judge found that Adamiec's actions were intentional but added LeMaistre, the judge in 2011, failed to apply the proper legal tests -- whether "the application of force occurred in the course of the game and with (Keast's) implied consent," the lawyer stated in a written submission for the appeal.
Brodsky said the referee had testified the contact had occurred over a span of less than three seconds and while he thought Adamiec's actions were reckless -- and warranted a yellow card or caution -- the actions were not serious enough to justify a red card, which would have had Adamiec thrown out of the game.
Brodsky said case law states violence in sports is allowed so long as it is unintentional, instinctive or incidental to the game. Brodsky said the trial judge failed to consider the contact between the two men within the context of the game.
"The ball was in play, and (Adamiec) and (Keast) were grappling for the ball, as both tried to gain control of it," Brodsky stated in his submission. "(Keast) had grabbed hold of (Adamiec's) legs and (Adamiec) was trying to free himself to continue his efforts to score a goal before the end of the game. The incident took place in a matter of seconds, and (Adamiec's) actions were instinctive."
Brodsky said contact sports such as hockey and soccer govern themselves, and violent acts within the context of the game are left to the rules of the game. Implied consent to violent acts, he said, should be measured by the age of the athletes, the competitive nature of the league, the circumstance of the contact and the types of injuries normally suffered by players of that level. Brodsky said the contact between Adamiec and Keast, and the injuries Keast suffered, were simply accepted parts of the game.
"The trial judge (LeMaistre) erred in failing to find that (Keast) had impliedly consented to the contact and the risk of injury that might result."
At the trial, court was told Keast spent several months undergoing treatment and physiotherapy for a hip pointer, broken hyoid bone and deep bruises to much of his upper body. In a victim impact statement, Keast said he fell into a deep depression and had suicidal thoughts.