By Christian Ingrassia
Hockey is inherently a contact sport, and certainly no stranger to injury. The International Journal of Sports Physical Therapy reports injuries rates ranging from 5.93-15.6 per 1000 athlete exposure.[1] “Fifty point nine percent of NHL [National Hockey League] players missed at least one game resulting in a total of $218 million dollars in lost salaries (based on individual player salary and number of days missed due to time loss injuries) per season between 2009-2010 to 2011-2012 seasons.”[2] Not only is there a welfare concern for the long term health of the players, but a fiscal component of the sport that is significantly affected by the injury rates seen in hockey.
Since the above statistics reflect unavoidable injuries that are mostly the result of ordinary play, the NHL would naturally want to take any precaution against any and all avoidable injuries. Yet, The League acts counterintuitively with its treatment of fighting on-ice. Fighting does not benefit a team in any official capacity, and as such would be assumed to only benefit the League by attracting audiences. With all the concerns for players’ health and the financial interests of the owners, should hockey allow on-ice violence even though it is against the rules of the sport?
Analysis
Almost five entire pages of the NHL Rulebook are dedicated to Rule 46 which governs and generally prohibits various forms of fighting.[3] The penalties imposed can range from multiple game suspensions to team fines of $1,000.[4] Despite the extensive language on the topic, any average viewer would necessarily regard fighting as fundamental to the game. Despite no points being earned and the rules clearly imposing penalties for fighting, the spectacle seems to be one of the main draws of the sport.
The fundamental nature of fighting has only been further cemented in the culture of the NHL with roles such as “enforcers” becoming more mainstream. “The commission found that fighting is an integral part of the game of hockey and that claimant’s job on employer’s hockey team was to be an “enforcer.”[5] Enforcers function as dedicated brawlers during a game to potentially fight on behalf of other players or instigate fights that star players cannot afford to be taken out of the game for. Consensus on the importance of this role has risen to formal recognition of this player’s duties. “The evidence was that [the enforcer] was doing just what he was paid to do and that his coach had directed him to ‘go get’ the opponent.”[6] “The commission awarded benefits to him,” as he was injured during a fight and his position reasonably expected him to engage in fights during his tenure on the team.[7]
With positions such as enforcers playing such a large role in the general acceptance of fighting, it is not hard to see why the NHL’s culture sees no problems stemming from the on-ice violence. “Fighting is not considered by players to be ‘violent.’”[8] “ In contrast, stick assaults are considered violent and unacceptable under all circumstances.”[9] The NHL has started to develop their own internal workings when it comes to violence, and what other players can accept as part of the game. As such the courts have expressed some reluctance to intervene into the internal governance on on-ice violence.
This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete onto the playing field…Individual sports are advanced and competition enhanced by a comprehensive set of rules. Some rules secure the better playing of the game as a test of skill. Other rules are primarily designed to protect participants from serious injury.[10]
Despite the Court’s reluctance to “overburden” sports with safety concerns, the violence-accepting culture surrounding the NHL will inevitably have long term consequences for players and the League. While sports such as American Football have started adding in more safety equipment to better protect players from the necessary contact involved in the natural play of the game, fighting is outside of the scope of these precautions. The NHL should work to prevent on-ice violence outside of the sanctioned rules.
Recommendations & Solutions
Is the answer to stopping fights in hockey to blatantly charge players with various criminal or tort liabilities? Most likely not, especially with the general reluctance of courts to intervene in the first place. The consequences could ripple far beyond intended effects of promoting safety and potentially destroy professional sports as a whole. Players would refuse to engage in high risk, high intensity sports that already pose enough health risks, without the additional fear of jail time. However, the possibility of liability when violent actions go beyond accepted standards could be a possibility. As proposed by some law journal articles,
In circumstances where a player’s conduct imposes an extreme threat of injury, or in cases where a player has acted with an intent to injure, civil as well as criminal sanctions should be imposed. The recklessness standard properly draws the distinction between fighting for the purpose of causing injury to another, and fighting that arises as a result of the fast-paced, forcible game. Such a standard will deter intolerable conduct while maintaining the game that so many Americans have grown to love.[11]
Additionally, the NHL should condemn and discourage the enforcer role. As seen in the Norfolk Admirals case, fighting is in the job description for certain players.[12] While the NHL may feel these players lead to more entertaining games, the general acceptance of a fighter taking up an otherwise important position on the rink sets a dangerous precedent. A standard NHL team is composed of five skaters and a goalie, meaning that an enforcer on the rink is wasting one-fifth of the makeup outside the goal. Medical articles published by Columbia University have been assisting the effort of phasing out enforcers by shining light on the health concerns prominent in the sport.[13] With players who functioned as enforcers dying almost a decade earlier than the average player, it would be in the NHL’s interest to punish teams who bring players in to fill the enforcer role whether through fines or incentives for skilled players.[14]
The NHL could also address on-ice violence by propagating official rule changes. As stated above, the NHL rulebook contains pages and pages of provisions meant to “deter” players from fighting, however, many of the penalties have no actual effect on the game. Penalties that affect the team rather than the players are one of the most influential ways to ensure compliance with rules. Rules such as 48.16 which impose $1,000 fines on the team for each player that fails to clear the area of a fight should be a more widely used punishment.[15] If fighting will negatively affect the entire team, the culture surrounding fights will shift from “self-less protection of one’s teammates” to a “selfish act of uncontrolled aggression”.
The culture of the NHL will be the largest hurdle to overcome when seeking to remove fighting from hockey, but the NHL must take affirmative steps despite possible fan reactions. Many sports broadcasters have already started pseudo-censoring by cutting away from televising the fights directly. Fans will inevitably push back against changes to the culture and the broadcasters’ choice, but the NHL needs to avoid the glorification of the non skill-based portion of hockey. Fights draw fan attention away from the athletic abilities needed in ordinary play. There are other sports that emphasize the athleticism needed to fight such as MMA or boxing, which contain very stringent rules and regulations to ensure the utmost safety of the athletes. The NHL’s loose application of the “non-fighting” rules can ultimately lead to more dangerous situations in which referees are unable to protect players and fights escalate beyond the generally recognized sportsmanship of the “scraps”. The NHL should continue the censorship of live fights and generally avoid giving attention to players known for fighting.
Conclusion
In conclusion, the NHL should seek to prevent on-ice violence in the league as there are long-term detrimental effects that will impact both the player’s health and the revenue generated. The NHL must seek the prevention with full force, as it would need to shake up the entire culture. Relying on what the broadcasters can do to censor fights will not perpetuate the change efficiently, but rather the NHL must make a commitment to altering the rules and its own perception of what violence is “part of the game”.
Christian Ingrassia is a third-year law student at Santa Clara University School of Law. His interest in sports related law was cultivated through coursework under the guidance of athletic agent Leonard Lun, as well as active participation in the Honors Moot Court Sports Contract Negotiation competitions.
[1] Martin C, Lieb A, Tokish J, et al. Initial versus Subsequent Injury and Illness and Temporal Trends Among Professional Hockey Players, IJSPT (Feb. 1, 2024), https://ijspt.scholasticahq.com/article/92309-initial-versus-subsequent-injury-and-illness-and-temporal-trends-among-professional-hockey-players.
[2] Id.
[3] NHL, Official Rules 2023-2024, 76, https://media.nhl.com/site/asset/public/ext/2023-24/2023-24Rulebook.pdf.
[4] Id.
[5] Norfolk Admirals v. Jones, No. 0050-05-4, 2005 WL 2847392, at *5 (Va. Ct. App. Nov. 1, 2005).
[6] 17 No. 11 Va. Emp. L. Letter 4.
[7] Id.
[8] Barbara Svoranos, Fighting? It’s All in A Day’s Work on the Ice: Determining the Appropriate Standard of A Hockey Player’s Liability to Another Player, 7 Seton Hall J. Sport L. 487, 491 (1997).
[9] Id.
[10] Nabozny v. Barnhill, 31 Ill. App. 3d 212, 215, 334 N.E.2d 258, 260 (1975).
[11] Svoranos, Fighting? It’s All in A Day’s Work on the Ice: Determining the Appropriate Standard of A Hockey Player’s Liability to Another Player at 511.
[12] Norfolk Admirals v. Jones at 5.
[13] Popkin CA, Morrissette CR, Fortney TA, McCormick KL, Gorroochurn P, Stuart MJ. The Penalty for Hockey’s Enforcers May Be Premature Death, Columbia University (June 12, 2023), https://www.cuimc.columbia.edu/news/ penalty-hockeys-enforcers-may-be-premature-death.
[14] Id.
[15] NHL, Official Rules 2023-2024, at 80.
