On Wednesday it was announced that New York Red Bull’s player Kaku received a suspension of 2 additional games/3 games total for having kicked a ball into the stands and hitting a fan. There’s a good chance if you’re reading this that the punishment is not enough for you, but I’ve seen people struggle for the justification and framework for demanding more.

Since I’m the type of person who likes to think on these things way too much, I felt like writing this piece to discuss the philosophy behind punishment and how it does and does not apply to this situation.

Penology

Until you are in a position where you are responsible for exacting punishment on others (for instance, being a parent), you may not have thought too much about what the purpose of punishment is and how do we justify it. Even those who have thought about it probably have not truly picked it apart, but fortunately for all of us there are philosophers who have tackled the subject. There are at least six possible justifications, which are generally not mutually exclusive. The main justifications for punishment are: Rehabilitation, Restitution, Incapacitation, Retribution, Deterrence and Social Denunciation.

How do these six apply to the Disciplinary Committee, especially in the context of this particular Kaku situation?

Rehabilitation

• “Punishment” which is used to correct the offender such that they would not engage in the actions again
• Anger management, drug rehab, etc.

Rehabilitation is not something that the Disciplinary Committee would generally impose (though we do see rehabilitation used within the league’s substance abuse policy). One would hope that the club organizations would step in with anger management interventions if such things were necessary.

Restitution

• Punishment in the form of making amends for one’s actions
• “I’m sorry, how can I make it better?”

Restitution is something much more likely achieved through civil court or settlement, especially in this case, but it is well outside the scope of the committee. I do imagine that the fan involved will be owed a great deal of restitution, and sincerely hope that MLS and everyone involved take this need seriously, but we’ll also probably not be privy to what ultimately transpires in this context.

Incapacitation

• Protecting society by preventing the individual from being in a position to make the same action again
• “Lock them away and throw away the key”

In the case of the Disciplinary Committee, incapacitation would be to impose a punishment that keeps the offender off the field so that they aren’t able to do the same thing again. This does not apply since nobody believes that Kaku is going to go out and do this even once more, let alone repeatedly.

Incapacitation would require extensive punishment for a great deal of time in most cases. I can imagine that the extensive suspensions to MLB players for performance enhancing drugs may be an example of incapacitation: that suspending a player for an entire season would keep them from benefitting in the game from the banned substances.

Retribution

• A form of vengeance in which the punishment is a response to the harm and intent of the action
• “Eye for an eye, tooth for a tooth”

Retribution is difficult for the Disciplinary Committee to assess since they only deal with the punishment of fines and games. Retribution satisfies our need to feel like people who do bad things “get what’s coming to them”. It tends to take both the intent and the outcome into account – for instance, the death penalty (a very retributive punishment) tends to be limited to individuals who try and succeed in killing others.

Retribution doesn’t apply here because Kaku, for as reckless as he was, did not intend to hit the fan and intent is a very crucial aspect to the notion of retribution.

Since retribution is often the desire from those who are outraged, it is probably difficult to accept that it doesn’t belong here for many who found themselves incensed by Kaku’s actions, but a simple thought experiment can clarify the issue. Retribution is often applied in kind (a la “eye for an eye”) so the question is: how would you feel if we set up a cannon which shot a ball into Kaku’s face at the same speed he hit the fan? If you felt like he meant to do it then you might be OK with it, but, if you agree that it was an accident, the notion of intentionally subjecting him to that experience seems inappropriate.

Deterrence

• Establishing a punishment to ensure that future individuals do not engage in the sanctioned action
• “Don’t do the crime, if you can’t do the time”

Deterrence is probably one of the most common themes I see about why MLS needed to come down harshly on Kaku. On the surface, I agree – but upon closer inspection I believe that it is a bit misguided for the situation at hand.

The first notion to work through here is: what must the punishment be to get players to think twice about smashing a ball like that? The problem with this is that it depends on a rational actor making a choice - future Kaku’s would have to see the ball they want to smash but then think to themselves “if I do that and hit a fan, I’m going to be missing X games!” and decide against it.

The thing is, this is not a situation where Kaku was thinking rationally to himself, doing a full risk assessment before deciding that he should go through with his action of hitting the ball as hard as he could… but imagine if he were thinking rationally. That would mean that he was weighing the cost/benefit of kicking the ball with all his might, factoring in the chance that it goes wrong and hits a fan. For the deterrent to be effective he would have to then factor in the expected punishment before deciding it wasn’t worth the risk.

The reason that using this punishment as a deterrent is misguided is that doing so implies that the league is hiring players who find it an acceptable risk to put fans in harm’s way if they could get away with it, but not acceptable if they must sit out 10 or 20 games. The correct thing to do in this situation is: do not hire players which think it is acceptable to put fans in jeopardy, period.

Social Denunciation

• Sending a message from society that the behavior is wrong
• “We have to send a clear message that this behavior is unacceptable”

This all leads us to the last possible justification – one in which the punishment is as much about making a statement to society (and to Kaku himself) as it is anything else. This is the justification I see as being the primary reason the Disciplinary Committee punished Kaku, particularly due to my opinion the other justifications do not apply.

We are all aware that talk is cheap. Making press releases or making statements are important, but they are hollow if they are not backed up with action. This is the opportunity for MLS to demonstrate how important its fans and their safety is to the league. It’s an interesting situation because the magnitude of the statement is fully quantifiable. The number of games correlates to exactly how much of a statement MLS is making. Unlike normal speech which is relatively ambiguous, everyone knows that the currency of the situation is games suspended.

Deterrence and Denunciation

The definition of deterrence above implies a rational cost/benefit type of decision in which the punishment should be taken into account with regards to the cost, making the action less appealing and therefore the individual does not engage in that action. Denunciation above is only taking into account the direct message being conveyed by the punishment.

In reality there is really an important intersection between these two notions, one in which the statement made by denunciation is one which will result in a reduction of incidence, not due to the rational thinking but due to a cultural change influenced by said statement. Think about those FBI warnings on VHS and DVDs – considering how impossible it would be to actually enforce copyright law in this way, the main purpose of these punishment warnings is to establish that it is morally wrong to make illegal copies so that people didn’t make them, not because of the cost of the fine but because it is simply wrong.

This still does not apply to this situation, however, since Kaku did not think that he was going to be hitting a fan with that ball. For it to work, the Disciplinary Committee would have to punish every player who kicked a ball at the ad boards/etc. in anger. Which may be something they ought to do, but it probably wouldn’t come with a game suspension but rather just a fine.

Comparative justice

How do other high profile and notable punishments compare to Kaku’s? Only by comparing other incidents in the past can we really evaluate the decision here.

Brian Mullan got 10 games for a leg breaking tackle on Steve Zakuani. This was an example of deterrence because, while Mullan wasn’t out there trying to break Zakuani’s leg, players make decisions whether to make tackles countless times a game and MLS was putting their thumb on the scale to tell players they had to do better. It could be by pushing for a rational re-calibrating what an ‘acceptable tackle’ is from current players within MLS or by sending the message to developing players that such behavior is unacceptable, but undoubtedly the point behind this massive suspension was to try and cut horror tackles from the game.

Ricardo Clark got 9 games for violently kicking Carlos Ruiz because he did intend to kick Ruiz and accomplished his goal. Now, Ruiz was the type of player that I imagine a lot of players wanted to kick, but doing it is another thing. This is a clear example of retribution at work, with the added benefit of whatever deterrence and denunciation that came with it.

Jermaine Jones got 6 games for accosting Mark Geiger (the ref) after he was unhappy with a call. This was both a deterrence and a statement, one of those intersections between the two. The relationship between a ref and a player is not always harmonious, but there are lines that cannot be crossed. Taken further, MLS could not turn a blind eye to ref abuse, especially when refs at lower levels across the country are abused, often by parents. Frankly, if you must blame any group of people for not having better refs, those parents are probably as much to blame as anyone.

Marc Burch and Colin Clark were each given 3 games for using a gay slur, which were about deterrence and social denunciation as well, though I imagine the length was much more about making a statement than anything else as even a 1 game ban would probably be enough of a deterrent for players to mind their speech more.

Finally, Tim Howard got 3 games for an altercation with a fan. A fan which reportedly instigated the incident. This is a decent comparison since it also includes a fan. In Howard’s case the fan ‘deserved’ it more, but Howard can not claim his actions to be an accident. In Kaku’s case the fan didn’t deserve it at all, but Kaku had no ill-will and it was an accident. To me, those two aspects push: Howard’s intent is somewhat offset by the behavior of the fan, Kaku’s lack of intent is offset by the complete and total innocence of the fan.

Conclusion

The reason I feel MLS missed the boat here is that the Kaku incident was way more devastating. The injuries are not trivial and, frankly, could have been far worse if circumstances were slightly different. Regardless of Kaku’s intent, it was a risk to act in that way and he bears the burden of the risk he took. Combine that with the fact that many fans can identify with the victim in this situation and MLS’s statement was wholly unsatisfactory. What fans hear is that MLS considers saying a gay slur to be as bad as sending an innocent fan to the hospital through extremely reckless, albeit unintentional, action.

One caveat here, I do imagine that the league did impose a larger punishment but after an appeal process it was pared down. I imagine the notion of intent and the lack thereof was a large part of this process and is why only 2 extra games were given.

Still, in the minds and hearts of many fans out there, all they know is that MLS didn’t show them the level of respect they were expecting and that is not a good thing for MLS at all. Hopefully they learn from this and that the eventual next time, whether that be this year or decades from now, they do better.