By Jon Heshka, Associate Dean, Faculty of Law, Thompson Rivers University
Jon Heshka
In the curious case of National Hockey League v. National Hockey League Players’ Association where the victim became the assailant and the sanction imposed wound its way through the NHL and the courts, there is finally closure after a New York district court denied the defendant NHL Players’ Association’s motion to dismiss on procedural grounds, granted the defendant’s motion to confirm the reduced suspension, and denied the plaintiff NHL’s motion for summary judgment.
On its face, the facts of the case are clear. During a NHL hockey game on January 27, 2016, Calgary Flames player Dennis Wideman was cross-checked by Nashville Predator player Miikka Salomaki causing Wideman’s head to hit the boards. This collision caused Wideman to suffer a concussion. Wideman remained on the ice in a crouched position for several seconds and then began skating towards the Flames’ bench. While he was doing so, linesman Don Henderson was skating backwards towards Wideman. Wideman raised his stick in the air so that the stick made contact with the official’s back. Henderson fell to the ice, hit his head on the boards and suffered a concussion.
NHL director of hockey operations Colin Campbell imposed a 20-game suspension, without pay, on Wideman for conduct violating Rule 40 of the league’s player’s rules. Wideman was to forfeit $564,516 in salary. Rule 40 governs the physical abuse of officials.
In particular, Rule 40.2 says, “Any player who deliberately strikes an official and causes injury or who deliberately applies physical force in any manner against an official with intent to injure, or who in any manner attempts to injure an official shall be automatically suspended for not less than twenty … games. The rule defines intent to injure as “any physical force which a player knew or should have known could reasonably be expected to cause injury.”
The rule is triggered when a game misconduct penalty is called on the play. Wideman was not assessed a game misconduct penalty. This should have exempted Wideman from supplemental discipline but the NHL relied on the rule as a touchstone for its inquiry concluding that his conduct met the relevant definition of intentional or reckless conduct and that a 20-game suspension was warranted.
The NHL Players’ Association appealed under Article 18.2 of the CBA to NHL Commissioner Gary Bettman. The NHLPA presented the testimony of two physicians who were experts in concussions and who had interviewed Wideman over FaceTime, a videotelephony application developed by Apple, several days after the incident.
It is interesting that in an atmosphere where the NFL was gearing up to settle its almost $1 billion class action lawsuit that the best the NHL Players’ Association could do in an incident in which a concussed player injures an official is to have doctors examine Wideman via video-conference days afterwards.
In rejecting the NHLPA’s argument that Wideman’s concussion rendered him “confused and/or physically incapable of avoiding contact with Mr. Henderson,” and that the collision was therefore “not deliberate,”, Commissioner Bettman ruled a week later that the evidence was clear and convincing to warrant the NHL’s imposition of a 20-game penalty.
The NHL Players’ Association then appealed under Article 18.13 of the CBA to the Neutral Discipline Arbitrator. The Arbitrator was James Oldham, a law professor at Georgetown University, who had been a neutral arbitrator for the NHL and NHLPA for over a decade.
During the two-day hearing, new evidence was presented including a frame-by-frame interpretation of the video of the collision by the Special Assistant to the Executive Director of the NHLPA who believed “Wideman lost control of his body” after the Salomaki hit, and the testimony of Dr. Ian Auld, lead team physician for the Calgary Flames, who averred that he did not examine Wideman until after the game because he did not believe he saw “any specific motoring incoordination [or] balance troubles” and when he did Wideman indicated that he was “dazed” after the cross-check.
The Arbitrator held that Commissioner Bettman’s “conclusion … that Wideman’s behavior constituted intentional action within the meaning of Rule 40.2 … [was] not substantially supported by the totality of the evidence presented at the [Neutral Discipline Arbitrator] hearing,” and that the proper penalty should have been that specified in Rule 40.3 which holds that any player who deliberately applies physical force to an official in any manner in which the force is applied without intent to injure shall be automatically suspended for not less than ten games.
As part of the decision, the Arbitrator analyzed and articulated the appropriate standard of review: The Arbitrator “has full remedial authority if the [Arbitrator] determines that the totality of the evidence presented at the [Neutral Discipline Arbitrator] hearing does not provide substantial support for the Commissioner’s decision.”
The Arbitrator noted that as Wideman skated towards the bench after Solamaki’s cross-check, “[i]t [was] possible, given the speed of events and Wideman’s condition, that Henderson may have been but a blurred distraction.” The Arbitrator also analyzed the collision in near-nanoscopic detail from Henderson possibly being in a more vulnerable position due to the position of his left skate to the weak positioning of Wideman’s hands on his stick. The Arbitrator also noted that “There was not even a scintilla of evidence to suggest why a player with Wideman’s excellent disciplinary record would intentionally strike Linesman Henderson” and that “the complete absence of any imaginable motive can give pause in assessing whether Wideman made contact with Henderson with intent to harm him.” In the end, the Arbitrator concluded that in light of Wideman’s “concussed state” and his analysis of the video, Wideman could not have anticipated that his push would cause Henderson to fall and bang his head against the boards sufficiently hard to put Henderson also in a concussed state.
The Arbitrator reduced the suspension from 20 to ten games after Wideman had already sat 19 games.
This led to the NHL suing the NHLPA. The United States District Court Southern District of New York was invited to procedurally stickhandle the case and to resolve whether or not the Arbitrator acted within the scope of his authority and the appropriate standard of review. The NHL sought vacatur of the Arbitrator’s decision on the basis that he failed to adhere to the standard of review laid out in the CBA and thus exceeded his authority under that agreement. The NHL Players’ Association filed a motion to dismiss or, in the alternative, to confirm the arbitration award.
In the end, the Court denied the NHL Players’ Association’s motion to dismiss the Complaint on procedural grounds but granted the Players’ Association’s motion to confirm because the Arbitrator was at least “arguably construing or applying” the CBA in reaching the decision and at least “arguably … acting within the scope of his authority” as defined by the CBA (Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001)).
The NHL released a statement after the decision saying: “We obviously disagree with the court’s decision today, but also recognize the very high judicial standard we needed to meet to disturb the arbitrator’s decision. While we believe we met that standard, we are prepared to turn the page and move on. We are hopeful that, if and when there is next an appeal proceeding involving supplementary discipline, the Neutral Discipline Arbitrator will properly apply the standard of review we and the NHLPA negotiated and agreed to in collective bargaining. That was clearly not done in this case.”
Post-script: James Oldham, the Neutral Discipline Arbitrator, was terminated after his decision but before the Court’s ruling. Don Henderson, a 22-year veteran, had surgery to repair two ruptured discs in his neck and has not officiated another game. Dennis Wideman is still playing professional hockey with the Calgary Flames.
