(Note: I am not an attorney, but I did talk to a few of them about the Andrew Peters incident, his continued appearance on WGR, and what a responsible company like PSE’s lawyers are likely advising them to do. Sure, it’s a lot of speculation, but I’m just a lowly blogger and can skirt journalistic principles at will.)
We discussed the Andrew Peters incident at length yesterday, and many thanks to those kind enough to reach out on Twitter and leave a comment. I had to cut my article short because a long time ago in a classroom far, far away, I learned that people eventually take a nap before a lengthy, rambling piece can end. Left uncovered were Peters’ return to the air on WGR radio and the possible legal ramifications that may stem from his incident on Saturday.
Peters opened his radio show at 10:00 a.m. Monday morning with the following statement:
“But first, I feel there is something I need to address. I think a lot of people have been talking about an incident surrounding our team this weekend and I’m the coach of the 15u Junior Sabres hockey team. The game resulted in a lot of penalties and on-ice altercations. And I just want to say that, first of all, there is no room for what happened in youth sports. Fighting in youth sports is absolutely unacceptable – and in all sports, not just hockey. It should be about good sportsmanship, developing skills, and being a good teammate. I didn’t do a good job this weekend communicating any of those skills to my team and I think that going forward I need to do a better job.”
Fair enough, I suppose, but let’s cut through the bullshit here shall we? Andrew Peters said the right thing here because he was advised by PSE’s lawyers, his own personal attorney, and PSE’s PR team that he absolutely had to say this. And I have no doubt he has many regrets about Saturday. But is anyone buying the “fighting is unacceptable part?” Go – go watch the video again. Check the part where Peters sees an unoccupied Junior Sabre and talks to him while motioning towards a confrontation developing to the right on the screen. Do you think he told the kid to go over and break the fight up? Maybe bring them some Gatorade? We can all speculate on what was said, but we all have a pretty damn good idea.
I use this to illustrate just how much potential trouble Andrew Peters is facing.
From a criminal standpoint, it doesn’t look that bad. According to John Wawrow of the AP it appears that the parents of the child who was assaulted will not be pressing charges. If they don’t press charges it is highly unlikely the DA will bother to do so on his own. So a criminal trial is highly unlikely.
Buuuuut. A civil trial is a real issue for Peters here, not to mention his employer. Peters committed an intentional tort, and I am told that is an intentional act on the part of the wrongdoer that he intended to perform. And guess what a really popular civil lawsuit is? The intentional tort known as battery, which is simply the intentional harmful or offensive touching of another without consent. Kinda’ hard to dispute, whatever your view of the incident may be, that battery took place.
Generally, the burden for an intentional tort falls directly upon the wrongdoer, not his or her employer, unless one can somehow find the employer liable. One can be found liable in one of three ways (again, so I am told by smart people). Those ways are:
- Have created the situation yourself
- Have actual notice (knowledge) that the situation could occur
- Have constructed notice that the situation could occur, which in layman’s terms is basically someone saying “bro, how did you not see this coming? People have been saying this could happen, you heard them, and you did nothing”
So Andrew Peters is clearly on the hook for a civil action if the parents were to choose that course (regardless of criminal charges – they do not help or hurt the case from a legal standpoint), and PSE could be on the hook as well if one could prove constructed notice, like, say, the fact that Peters has openly talked about his fears of CTE and what may have happened to his brain by being concussed dozens of times in his career.
At this point two questions remain – what should happen to Peters today in his role at PSE and what should happen in the future? Let’s tackle today first…
Is there a basis to remove Peters from his over-the-air job on WGR as an employee of PSE? Honestly, a valid case can be made either way. One view can be that he is serving a role outside of his role as coach, his being on the air has nothing to do with what happened that Saturday, and there is no harm in letting him host a radio show.
Another view may be that PSE may have constructive notice that Peters is unstable and they might be worried he may plow his producers head through the drywall for no reason. But that is unlikely considering his past performance on the air where he seems non-violent, and those around him can best make that decision.
But a third view may be the way the situation looks, or “the optics” as the kids say today. It’s a really bad look to present your organization as the future of WNY hockey development and continue to have a guy who assaulted a 15-yr-old representing your brand. From a legal standpoint, you are probably all good. But for the sake of appearances, perhaps a paid vacation until it gets sorted out might have been best.
Let’s move on to what should be done moving forward. If I am an attorney for PSE, I am strongly advising my client to not reinstate him until he has served a lengthy suspension coupled with counseling or therapy. Why? Because after that act PSE now has constructive notice that this could occur again. If after a suspension and employer-paid counseling he were to slip up again, PSE has legal ground to say “hey, we did our part, he received professional counseling and we felt confident in his abilities.” But if, for some reason, USA Hockey does not suspend him for a significant term then PSE must do so, for their own sake. Of course, all of this assumes they actually want to continue their relationship with him as opposed to removing all liability by just firing him, but based on Terry’s past decisions and his kind heart I think the odds on that are slim.
Personally? I think he should be being paid at the moment to take his mornings off, at least until USAH and whatever other governing bodies mete out their punishment.
As an aside, we should all be pulling for the Buffalo Junior Sabres 15u team this weekend at States. These are our kids, from WNY, and they deserve our full support.
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