Prosecuting sports violence: the Indonesian Football case.

• Author: Santoso, Topo

1. Introduction

   For a long time, there have been various problems in Indonesian football, such as fighting and violence on and off the field, as well as vandalism. Many incidents have also taken place, such as violence committed player to player, player to match referee, player to supporter, official to referee, and official to player. Fighting has also occurred between supporters and between supporters and the public (who were not involved in the football game). Meanwhile, vandalism has often occurred in the form of destroying football stadiums, public utilities, and private belongings.

   The abovementioned problem is becoming more and more serious and needs to be analysed to find solutions to deal with it. The problem is found not only in Indonesia, but throughout the world. (1) Discusing all problems involving violence in sports would be very difficult and would require extensive study, because it covers so many considerations, not only juridical or normative aspects, but also sociological or even cultural ones.

   Of these many problems, one problem will be discussed in this article, namely the implementation of criminal law provisions (particularly crimes against the person) in sports violence (particularly in "contact sports" such as football). More specifically, if the incident is taken place during the game. For incident not in the playing field, an athlete stands in the same relation to the criminal law as does any other citizen. (2) Today, there still remains a significant debate as to whether criminal law should be invoked in on-field cases. One side rejects the implementation of criminal law and prefers to use the so called "lex sportiva" or internal sports regulations, while the other side prefers to use the criminal law.

   The opponents of criminal law implementation argue that all aspects of sports events have already been controlled by internal regulations. The use of criminal law will jeopardize the aim of sports, where people will be afraid to participate because of the risk of prosecution. For this reason, criminal law should not be implemented because circumstances are different from those outside the sporting arena. If criminal law applies, it will cause thousands of people to be prosecuted, because in sporting activities there are high risks of injuries being caused. If occurring outside sports events, such injuries could be regarded as criminal acts, particularly assault.

   Meanwhile, the proponents of criminal law implementation argue that internal sports regulations cannot make something which is illegal into something legal. This side also argues that what is tolerable, even if it is part of a game or is a risk which is accepted by all sides in a match, and that there are certain actions that fall beyond the standard of acceptable conduct. Such conduct can then clearly be considered a crime.

   This paper will focus on the problems arising from the implementation of criminal law in sporting activities. It will try to establish the relevant standards on the part of law enforcement agencies, sports organizations, and athletes to be considered when we face the problem of criminal law as applied to sporting activities. In this article, I will focus only on football games in Indonesia. Football is the most popular sport in Indonesia, and in the last ten years there have been many incidents leading to debate over the role of the criminal law.

2. Nova Zaenal Dan Momadao Case

   In February 2009, two football players, Nova Zaenal (Persis) (3) and Bernhard Momadao (Gresik United), were involved in a fight during a football match between PERSIS Solo and Gresik United in the Indonesian Football league. After the match, the police arrested and detained the players and investigated the incident, following which they were prosecuted by the Solo District Attorney. In March 2010, the Solo District Court found Nova and Momadao guilty of assault and sentenced them to three months imprisonment, with six months probation (a suspended sentence). The court held that the defendants' conduct had damaged the reputation of Indonesian football. The High Court of Central Java at Semarang agreed with the Surakarta District Court decision, even imposing a more severe punishment, extending the imprisonment to six months with one year of probation/suspended sentence.

   Those who approve of the prosecution argue that it shows that no one is above the law and that it will deter participants in sporting events from fighting, and thus will discourage public disorder. Those who disapprove argue that it is sufficient for participants in sports to be governed by the rules of the game. Some people (including high ranking officials of the Indonesian Football Association) claim that: "This is the first and only incident - not only in Indonesia but also in the world - in which athletes were prosecuted in a criminal court."

   In the Indonesian context, the abovementioned claim could be correct, but in other countries the implementation of criminal law in court for sports violence dates back more than 100 years, and the first sports-related criminal case is commonly considered to be R v. Bradshaw (1878). The claim that the prosecution of athletes for offences committed during a game has only occurred in Indonesia and that it is the first and only case in the world is thus exaggerated. This exaggeration was probably caused by over criticism of the harsh application of the criminal law in this case.

   Besides R v. Bradshaw (1878), there are other decisions concerning criminal law and sports events, such as People v. Fitzsimmons (1895), Commonwealth v. Sostilio (1949), R v. Maki (1970), R v. Green (1971), State v. Forbes (1975), People v. Freer (1976), R v. Johnson (1986), R v. Birkin (1988), State v. Floyd (1990), R v. Blissett (1992), Jensen v. R (1994), State v. Shelley (1997), People v. Schacker (1998), R v. Brownbill (2004), and R v. Evans (2006).

   It is thus clear that the criminal law has been used to prosecute and punish athletes who act with excessive violence or are involved in fighting during the course of a game. This development is problematic because there is a conflict between criminal law and sporting law. Prosecutions have been seen as intervention in sport. However, there are reasons to use criminal law, particularly if the conduct goes beyond acceptable standards. Some factors that can be taken into account by law enforcement agencies dealing with violence or fights during the course of sporting events include intention, the consent of the participants, the legality of violence, moral...