Concussions and player discipline. Outside of the games themselves, are there any issues that dominate the headlines in professional sports more? The Dennis Wideman case provides both. Can a player use a concussion as an excuse for an on-ice discipline-inducing action? Can a League overturn a suspension even if a neutral arbitrator disagrees with the Commissioner?
On January 27, 2016, Dennis Wideman, a defenseman of the Calgary Flames, was playing against the Nashville Predators. About halfway through the game, Wideman was checked into the board by another player, smashing his head into the wall. After wobbling to his feet, Wideman skated towards the bench. On the way, he encountered and struck NHL linesman Don Henderson forcefully in his neck/back with his stick. No penalty was called on the play and both Wideman and Henderson finished the game but were both diagnosed with concussions after the game. According to a report, Henderson recently had potentially career threatening neck surgery. The controversial incident is captured on video here:
Getting Caught Up To Speed
The NHL’s Collective Bargaining Agreement contains a provision for “Supplemental Discipline”, a procedure for the League to suspend and fine players for various forms of conduct. The process is supposed to play out as follows: (1) a player gets suspended / fined by the NHL’s Department of Player Safety; (2) the player appeals his suspension / fine to the NHL’s Commissioner Gary Bettman; (3) the player appeals the commissioner’s decision to a neutral disciplinary arbiter (“NDA”), who has the final decision on the matter.
NHL’s Initial Suspension: On February 3, 2016, the NHL announced that Wideman was suspended 20 games for his contact with the linesman. The NHL released a video detailing the reasons for the suspension. The NHL determined that NHL Rule 40.2 (“Physical Abuse of Official), which mandates a minimum 20 game suspension for a player who “applies physical force against an official with intent to injure…” (note: Rule 40.3 imposes a 10 game mandatory suspension for the same offense “without intent to injure” ) provided the appropriate framework for the suspension, even though Rule 40 technically did not apply since there was no on-ice penalty called. Here is the exact language in Rule 40 at issue:
Regarding the concussion issue, the NHL stated that the video of the incident shows that Wideman maintained continued awareness of his circumstances, refused medical attention and played the remainder of the game, thereby showing no signs that he was disoriented to the extent required to not be responsible for his on-ice conduct. Wideman appealed his suspension to Commissioner Gary Bettman.
Commissioner Bettman’s Order: After Bettman conducting a hearing, on February 17, 2016, he issued a ruling upholding Wideman’s 20 game suspension. The NHLPA argued that Wideman was concussed, disoriented, and therefore did not have the mindset required to have “intent to injure”, which would preclude a 20 game suspension under Rule 40.2. This explanation was rejected by the Commissioner in its entirety. Bettman reasoned that medical testimony offered regarding Wideman’s mental state was “not based on what Mr. Wideman’s mental capacity actually was at the time in question, but about what his condition might have been.” Bettman did not discredit the qualifications of the doctors examining Wideman, rather, he focused on the fact that the examinations were not done until days later and were conducted over FaceTime. Morever, Bettman reasoned that Wideman’s awareness of his own condition and injury should have caused him to be similarly aware he could not strike the linesman. Wideman appealed Commissioner Bettman’s ruling to the NDA, James Oldham.
NDA Oldham’s Opinion: On March 10, 2016, Oldham issued an opinion reducing Wideman’s suspension from 20 to 10 games. First, Oldham addressed concerns regarding the standard for and scope of his review by declaring that he had “full remedial authority” if he determined that “the totality of the evidence presented at the NDA hearing does not provide substantial support for the Commissioner’s decision.” Oldham detailed his own review of the incident and testimony, concluding that Wideman did not “intend to injure” the linesman. Thus, the 10 game “no intent to injure” standard (Rule 40.3) should apply and reduced his suspension accordingly. Notably, Oldham took Wideman’s “concussed state” into account during his analysis of Wideman’s intent.
NHL’s Lawsuit to Vacate Oldham’s Order: On June 8, 2016, the NHL filed a complaint in New York federal court seeking to vacate Oldham’s ruling. The lawsuit alleges that Oldham “exceeded his authority under the CBA” by substituting his own judgment for that of the Commissioner. Therefore, the argument goes, he overstepped his limited task of determining whether the Commissioner’s opinion was supported by “substantial evidence”.
After the lawsuit was filed, on July 1, 2016, Oldham was terminated by the NHL from his position as the NDA. The CBA gives both sides the right to terminate the NDA on July 1 for any and no reason.
NHLPA’s Motion to Dismiss: On July 29, 2016, The NHLPA filed a Motion to Dismiss the NHL’s suit seeking to vacate Oldham’s order. The Motion alleges that the lawsuit was procedurally improper, as the NHL should have filed a Motion to Vacate the arbitration award (similar to the procedure utilized in Deflategate) instead of initiating a separate lawsuit and that any motion filed hereafter would be time barred. Substantively, the NHLPA argues that the Oldham’s decision fell within the scope of the authority granted to him by the CBA and should not be disturbed.
In a court filing, the parties agreed to expedite the case and the NHL indicated that it would be filing a motion for summary judgment by August 26th. Briefing on both motions is set to be complete by September 30th.
In the NHL’s eyes, Oldham’s ruling could be a terrible precedent that has a profound impact on future disciplinary issues. The idea that a potentially concussed player could avoid responsible for their own actions, also known as the “concussion defense”, is a precedent the league cannot afford.
The medical issues here are complex and unclear. As it stands, medical experts hold very different opinions about the short and long -term effects of concussions. In this case, the physicians who diagnosed Wideman after this incident testified that the concussed often have “impulse control difficulties” in the moments following the initial trauma. On the other hand, in several peer reviewed medical studies concerning the effects of concussion, there was nothing to suggest that legitimate long-term effects of concussions, including agitation, poor emotional regulation and difficulty exercising physical control, manifest themselves in the moments after a player first becomes concussed.
The NHL rightfully sees this as a slippery slope issue. Holding that a potentially concussed player cannot act intentionally could lead to the increased use of this defense, as the league’s rules allow for lesser punishment for unintentional acts. This case is particularly concerning to the NHL given that the medical testimony offered by the NHLPA in support of Wideman’s concussion defense was proffered by physicians employed by the NHLPA who “examined” Wideman over FaceTime four days after the incident. Such a low standard for medical testimony would open the door for this defense to be used in nearly any lengthy suspension involving violent player conduct.
Additionally, the league was not going to accept that the NDA could completely disregard the determinations of the Commissioner on the most crucial findings of fact. Not to mention, accepting such a ruling would endanger the tenuous relationship between the NHL and its officials.
From the NHLPA’s perspective, the NHL’s lawsuit and subsequent termination of the NDA after an unfavorable ruling equates to the NHL abusing the system it had agreed to in the CBA. The arbitrator’s award should be binding absent some abuse of discretion, which – according to the NHLPA – is clearly not present in this matter.
Regarding the concussion defense itself, the NHLPA should have some concerns about the potential slippery slope here. The overuse of the defense could weaken the defense’s credibility. If the NHLPA intends to use such a “state of mind” defense in the future, they need to rethink their approach to the examination, assessment and diagnosis of the player in question. At the very least, they should have independent medical experts in person as near to the incident as possible. Further, the concept that a concussed person is prone to acts of physical violence and not fully responsible for their own actions would impose additional responsibilities on players (and teams) to ensure the safety of those around them until the concussion symptoms resolve.
If nothing else, the NHL’s lawsuit has created serious questions of legitimacy regarding the NDA’s ruling in order to weaken and potentially prevent the use of it as precedent in future arbitrations. The NHL already removed Oldham from the process. We will see whether they will be able to remove his ruling along with him.