Chris Pronger Joins NHL Department of Player Safety

November 9, 2014

Uncategorized

By Kyle Nagy – Thompson Rivers University 3L JD Student

In October, five-time National Hockey League (NHL) All-Star, two-time Olympic gold medalist and Stanley Cup champion Chris Pronger joined the NHL’s Department of Player Safety (the “DPS”). Although many have voiced concerns over appointing a player widely regarded during his playing days as “dirty” to a position to judge other players’ transgressions, there are bigger legal issues of concern.

First is the issue of conflict of interest. Lawyers have an ethical obligation to avoid conflicts of interest. Although different than the context of the NHL and their DPS, some of the same principles may apply to both situations. A fundamental principle of a lawyer’s professional responsibility is the duty of loyalty the lawyer owes to the client. A lawyer generally cannot represent a client if the representation involves a conflict of interest. Rule 3.4-1 of the Code of Professional Conduct for BC states that “[a] lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.” Commentary for this rule further describes that a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by.… the lawyer’s duties to another client, a former client, or a third person. Due to the complexities that can arise from this rule, most law firms have rigorous systems for “conflict clearance” before any legal engagement is accepted.

This is relevant because Chris Pronger is still on the Philadelphia Flyers’ payroll. Pronger has not played with the Flyers since November 2011, when consecutive head injuries sidelined him. However, his $4.9 million per year guaranteed contract signed in 2010 runs until 2016-17. Prima facie, this looks like a classic conflict of interest situation. Although Pronger will not be asked to give an opinion on any Flyers players, what if an impact player from a division rival of the Flyers comes before the DPS for a hearing? It could be argued that Pronger’s loyalty to his current employer, the NHL, could be materially and adversely affected by his duty to another employer of his, the Philadelphia Flyers. The NHL does not adhere to BC’s Code of Professional Conduct, but it would be astute of them to perform some sort of similar “conflict clearance” check before hiring employees.

The related issue of bias is the main reason why observing a set of rules like the aforementioned code is crucial. The test for reasonable apprehension of bias of judges was outlined by the Supreme Court of Canada in the dissenting reasons in Committee for Justice and Liberty v. National Energy Board and was affirmed by the Supreme Court in R. v. S. (R.D.). The test is what an informed person, viewing the matter realistically and practically, having thought the matter through, would conclude, whether he or she would think it more likely that the decision-maker, consciously or unconsciously, would decide fairly. This test outlines the importance of the general public’s perception to the question of bias, and would be a good starting point for the NHL to use when hiring.

The rule against bias aims to maintain public confidence in the administration of justice by ensuring that decision-makers are not reasonably perceived to be deciding matter that will benefit them or those with whom they have significant relationships. Even if Pronger is able to objectively perform his duties and recuses himself from opining on decisions regarding Flyers players, it could be argued there still exists a perception of bias.

Hockey is not currently a top-tier sport in most American states. If the NHL wishes to change this, they must not underestimate public perception and should prudently protect their credibility. The hiring of someone that could trigger thoughts of conflict of interest, and subsequently the perception of bias, was not the wisest choice.

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