Tag Archives: Hockey

Child Labour or a Privilege to Play? The CHL’s Class Action and Washington’s Legislated Exception

November 22, 2015

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By Richard Wong – Thompson Rivers University 2L JD Student

In October 2014, class actions were commenced against the leagues and teams that form the Canadian Hockey League (CHL). Players who entered into contracts with teams in the Western Hockey League (WHL), Ontario Hockey League (OHL) and Quebec Major Junior Hockey League (QMJHL) seek to recover back wages, vacation pay, holiday pay and overtime pay in accordance with applicable employment standards legislation. The plaintiffs allege that the standard form contracts signed by all players are employment contracts that contravene minimum wage standards within their respective jurisdictions. The Statement of Claim alleges that the average player only earns $35 – $50 per week for 35 – 40 hours of work.

In August 2015, Engrossed Senate Bill 5893 (the “Bill”) was passed in the state of Washington – home of the Seattle Thunderbirds, Everett Silvertips, Tri-City Americans and Spokane Chiefs of the WHL. Section 3(p) of the Bill explicitly excludes from the definition of employees: individuals between the ages of 16 – 20 “in his or her capacity as a player for a junior ice hockey team.” The Bill states the legislature clarified that junior ice hockey players are not employees in order to “assist the financial stability of public facilities districts and ensure the viability of junior hockey in the state.” The Bill also states that the legislators recognize that junior ice hockey teams provide “significant benefits to their players by teaching them valuable athletic skills and interpersonal life skills,” in addition to providing “significant financial support to their communities as tenants of arenas owned, operated, or managed by public facilities districts.”

Concerning this passing of legislation, it has been reported that a memo written by Assistant Attorney General of the state advised an investigator with the Labour and Industries Department that junior hockey players should be considered employees and be protected under minimum wage law. These views were considered by the investigator and reiterated in a report that advised colleagues that “players should be considered employees instead of trainees” because teams are receiving immediate benefits from their players. In addition, it was reported that players from outside the US obtain P-1 Visas which are required for internationally recognized athletes to “work.” The investigator used this as another example to support her recommendation that WHL players should be treated as employees and protected under child labour laws.

Considering the passing of the Bill, even against the recommendations of investigators and the Assistant Attorney General, it appears the legislators favoured the financial and social value these Washington teams bring to the state – over the interests of the athletes providing their services. Although I acknowledge that playing major junior hockey is a privilege, and agree that these teams provide their players with valuable skills, I cannot comprehend how these factors justify overriding child labour laws.

The justification as stated in the Bill is blatantly prejudicial. It seems to mean that even though there are child labour laws in place, and even though these athletes would otherwise be defined as employees in law, they should nonetheless be deprived of protection in order to sustain the financial viability of arena districts. This means that no matter how many hours these players are required to provide their services (because they have no choice to – either they agree to or do not play), they should be deprived of the legislated minimum wage because their services generate money for the state.

Passing of this Bill leaves one to wonder at what expense does the social or financial value of sport override the rights and interests of those who participate? Will legislatures from other states and provinces that have teams in the WHL, OHL or QMJHL follow Washington’s justification for making major junior hockey players the exception? Or will these jurisdictions recognize the backlash that this decision will bring and that minimum wages for these particular athletes is a cost that teams should pay? It will be interesting to see the developments in these class actions and if child labour rights continue to be recognized at law in this context. This will require careful deliberation of lawmakers in these jurisdictions. If the legislatures choose not to involve themselves in such a decision, it will be up to the judiciary to weigh the value of sport against the rights of its participants.

 

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Guilty by Association – The University of Ottawa’s Decision to Publicly Discipline the GG’s

November 16, 2015

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By Richard Wong – Thompson Rivers University 2L JD Student

In early 2015, former members of the 2013/2014 University of Ottawa men’s varsity hockey team (the “GG’s”) filed a class-action lawsuit against the University of Ottawa and its president (collectively the “Defendants”). The GG’s were suspended during a nationally televised news conference after allegations of sexual assault against two players were made during a team road trip. The two players who are not a part of the lawsuit were charged under the Criminal Code. The GG’s claimed that their individual reputations, prospective hockey careers, and professional lives were tarnished after public announcement of the collective punishment.

In July of 2015, the Ontario Superior Court considered a motion by the Defendants seeking dismissal of the Plaintiffs’ claim that the Statement of Claim disclosed no reasonable cause of action (Creppin v University of Ottawa, 2015 ONSC 4449).

To summarize, Justice Phillips declined to strike out any part of the claim on the basis that it was not plain and obvious the actions taken by the Defendants (i.e., publicly disciplining students known to be uninvolved in the alleged sexual assaults) were entirely within the University’s broad discretion to manage its academic affairs. In addition, he concluded that it was not plain and obvious that the Plaintiffs’ claim in negligence against the University could not be made out, thus declining to strike that portion of the claim.

However, Justice Phillips struck out the portion of the claim relating to a breach of a fiduciary duty because it was plain and obvious this claim would not succeed by applying the test from Alberta v Elder Advocates of Alberta Society. Specifically, he found that there was no undertaking that the University would forsake the multiple interests of other bodies it governs (e.g. other students and faculty) in favour of the GG’s. In addition, the claim of misfeasance in public office was struck out because he found there was no basis that the president, in executing his duties, acted in bad faith or dishonestly – although potentially negligently.

Negligent Disciplinary Actions?

Considering the negligence claim that has not been struck out, it seems that the GG’s may be successful in establishing that the University is vicariously liable for the president’s choice in publicly disciplining the GG’s who were not involved in the alleged sexual assault.

The first issue in establishing a duty of care in this case rests on the characterization of the relationship between the parties. The Defendants take the position that a university does not owe a duty of care towards athletes in regards to the operation of varsity sports programs. However, Justice Phillips recognized that this case is not merely concerned with the right to play hockey, but rather a contractual relationship between the University and students (who happen to be members of the varsity sport team).

Such a duty has been previously recognized by the Supreme Court of Canada (Young v Bella, [2006] 1 SCR 108), and will likely be difficult to refute considering that the basis of the claim is the harm caused to these students as a result of the direct relationship they have with the University. I find it difficult to comprehend how reputational harm to students, such as that caused by a university’s public announcements related to a serious criminal offence, is not reasonably foreseeable. Public disciplining of this sort would foreseeably result in a haunting impact – both within the academic and professional spheres of the students affected.

The next issue in this case revolves around the standard of care required by the Defendants in administering their choice of disciplinary procedures. The choice of disciplinary procedures would have a significant impact on the lives of students associated with allegations of sexual assault. Specifically, public announcements of this association would stigmatize these students within the student body, in the community, and in their professional reputations – in sport or otherwise. This would likely require a thorough investigation of the incident (which was arguably conducted) in addition to establishing a connection with those who were not accused of the alleged crimes.

Although the Defendants owe a duty to other students and the University as a whole, the decision to consolidate the two accused with those uninvolved, and to discipline the uninvolved GG’s publicly at a national and international level, is likely a breach of the required standard of care. In my opinion, the decision to publicly discipline the GG’s was unnecessary to achieve justice owed to the victims. Even though the president acknowledged that some of the GG’s were unfairly affected, the result of this discipline has catastrophic consequences for those (un-)involved. There could have been a clearer articulation of those uninvolved students, and more emphasis of the root of the problem – the two individuals who were accused of sexual assault.

This assessment of the case is by no means a justification for the behaviour of the two accused. Rape culture in varsity sports is a serious issue that must be acknowledged. However, this case is dealing with the consequences of punishing individuals who have not been involved with such repulsive activities. Does guilt by association include being a member of the same sport team? What control do others, who are not present at the scene, have over those who decide to make anti-social decisions? If a settlement is not reached and the Plaintiffs are successful, universities in the future will need to be cautious in answering these questions prior to executing disciplinary actions.

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Heads Up: Concussions, Class-Actions and the National Hockey League

October 22, 2015

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By Brianna Meyer – Thompson Rivers University 2L JD Student

The Stanley Cup. Sidney Crosby. Wayne Gretzky. These buzzwords ignite dreams of aspiring elite hockey players across Canada as children of all ages commence the journey to the National Hockey League (NHL). For those that make it, the NHL provides the ultimate platform of hockey excellence. A dream come true. But at what cost?

For over 200 former NHL players, the lasting effects of head injuries sustained during their professional hockey careers have motivated a class action lawsuit against the NHL. The players allege that the league was wilfully withholding information about the long term health effects of repeated head trauma and was actively encouraging dangerous behaviour.

This lawsuit follows the successful $765 million dollar settlement for players of the National Football League sustaining similar head injuries. Boston University researchers have diagnosed several deceased NHL players as victims of trauma-related brain disease. Although this area of research is novel and still advancing, Boston University has identified a link between chronic traumatic encephalopathy (CTE) and repeated blows to the head. CTE is a degenerative brain disease found in former deceased athletes often identified by the presence of hyperphosphorylated tau (an abnormal protein in brain cells).

This link is currently being questioned by the NHL who has since subpoenaed records from the Boston University researchers conducting these studies. NHL commissioner Gary Bettman has rejected the very notion that the link between CTE and sports-related concussions exists at all. Besides this league denial of a connection, there are other significant obstacles that stand in the way of former NHL players claiming damages from the NHL for their injuries. The majority of the claimants are retired, which raises questions as to the limitation period upon which this litigation is brought. In addition, we are talking about professional hockey players who grew up playing in minor and amateur hockey leagues. Isolating causation and liability specifically to the NHL will be a significant burden to prove.

Despite these impediments, this issue is not going away. In February 2015, Steve Montador died at the age of 35 from an undisclosed cause. He had been exhibiting signs of a brain disorder including depression, memory problems and erratic behaviour leading up to this death. An examination of his brain post-mortem revealed that he suffered from CTE. The scope of this class-action lawsuit demonstrates that Steve Montador is not alone.

Changes to the NHL official rules to prohibit illegal checks to the head were made in 2011. But is that enough? For players suffering from the long-term effects of traumatic brain injuries sustained while playing professional hockey the answer is clearly no. When elite athletes elect to participate in a sport there are always inherent risks. However, the core of this lawsuit alleges that the NHL withheld the very information players needed to know to make a rational, informed choice about taking such risks. The lawsuit emphasizes that the NHL has the capacity and the resources to better prevent head injury but failed to do so. Players can only consent to risks they are aware of. The NHL, it is alleged, blurs the lines of what players actually consent to.

CTE. Second-impact syndrome. Traumatic brain-injury. These words are killers of professional hockey dreams unless there are significant changes in the prevention, treatment and and return-to-play protocols of concussed players in the NHL. Legal accountability is one mechanism that can trigger this process. For the sake of aspiring hockey players across North America, I hope that the courts can force the NHL back into the reality of the game to deal with this issue head on.

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Chris Pronger Joins NHL Department of Player Safety

November 9, 2014

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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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Suffering Sports Spectators: The Canadian view on liability for injuries to spectators at sporting events

October 10, 2014

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By Danika Heighes – Thompson Rivers University 3L JD Student

Sports, especially contact sports such as hockey, have an inherent risk of injury. When players take to the ice they assume liability for their possible injury within the regular course and scope of the game. The logic behind the assumption of risk doctrine is quite sound: a player provides consent for the activity in question after being fully aware of the risks involved in that activity. But what happens, when the injured party is not a player, but a spectator?

Recently spectator injuries at Chicago Blackhawks games have resulted in two lawsuits. On June 12, 2013 during Game 1 of the Stanley Cup Finals, Patricia Higgins was struck in the face by a puck. Higgins was seated behind the safety net in section 115, in the southwest corner of the stadium, when an errant puck had flown up and under the protective netting to strike her in the face. As a result of the incident, Higgins suffered a bone-deep gash that required 20 stitches, a bruised retina, a concussion, and required reconstructive surgery. In July, she filed a lawsuit against the United Center for $50, 000, plus legal costs, claiming the safety netting wasn’t “functional” to protect her from the puck.

In September 2014, a second spectator lawsuit was filed regarding the Chicago Blackhawks. Gerald Green was seated in the northwest corner of the rink in the second row as the Chicago Blackhawks hosted the Minnesota Wild on May 2, 2014 in a playoff game. Although Green was seated in an area behind protective glass and the spectator netting, he was struck in the side of the head by a puck that flew over the protective glass at a high rate of speed. According to the lawsuit, Green sustained a “severe neurological injury”, has trouble formulating words, can no longer do mathematical equations and can no longer work to support his family of four. Green’s lawsuit against the NHL and the United Center claims negligence, seeks at least $200,000 in damages and expects the team to extend its safety netting further around the rink. In addition, Green claims he was not warned of the serious risk associated with being hit with a hockey puck.

Which brings us back to the question: who is liable for a spectator’s injury at a sporting event? Specifically in Canada, spectators at a sporting event are assumed to have accepted the ordinary, reasonable, and foreseeable risks associated with attendance. Nonetheless, in general, when a spectator is injured an action will be brought against the occupier of the facility where the sporting event was held and potentially against the individual participant, team, or league. The principle behind this is that the occupier has a duty to ensure that the premise is reasonably safe. However, as the great cricket case of Bolton v Stone illustrates, there is a difference between guarding against foreseeable risk and an absolute guarantee of a completely risk-free environment. Thus, when the courts determine whether an occupier has discharged its duty of care, they consider the nature of the sporting event, any inherent risks, whether the spectator can foresee those risks, and the industry standard for safety precautions. The United States, however, has a very different set of rules governing spectator injuries.

The current NHL industry standards regarding spectator safety has been in place since the 2002 death of a 13-year-old girl. Currently every arena has safety netting which is roughly 120 feet wide and 30 feet high. This netting is consistent with European hockey leagues, and minor leagues. In addition, every hockey ticket sold in the NHL has a waiver of liability written on them asserting that the spectator assumes any risks inherent to the sporting event, including “flying pucks”. The lawsuits both allege that the current netting does not protect spectators. However, both Higgins and Green were seated in the lower bowl, where the risk of a flying puck is greater than other sections. In fact, the appeal of the corner sections is that the line of sight is not encumbered by the netting.

Frankly, the current standards guard against reasonably foreseeable risk, even if they do not absolutely guarantee a completely risk-free environment. How can any spectator at a hockey game state that they were not warned of the serious risk associated with being hit with a hockey puck? At some point, a spectator must take liability for their own safety at a hockey game where it is reasonably foreseeable that a puck will leave the ice during the course of a game.

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NHL is not taking the threat of concussions seriously enough

November 12, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Concussions have become a prominent issue in the world of hockey and they are becoming more and more noticeable in the National Hockey League.Through the first month of this season, the rate of concussions in the NHL is up by about 30%.Just this season alone, we’ve seen star players such as Rick Nash, Dustin Penner, Danny Briere and Dan Boyle all suffer concussions.

There is no doubt that concussions are an extremely serious issue and the NHL Player Safety department has tried to address this.Rule 48.1 of the Official NHL Rulebook defines illegal checks to the head.It states that, “a hit resulting in contact with an opponent’s head where the head is targeted and the principal point of contact is not permitted.”The NHL states that they take this issue seriously and in reality they generally hand out suspensions for illegal checks to the head.Whether the sanctions given out to players who deliver headshots is adequate or even working is a question for another day.

The NHL makes a point of denouncing checks to the head but are they doing enough?One of my biggest problems with the NHL’s denunciation of headshots is that it is largely reactive rather than proactive.What I mean by that is that the NHL will suspend a player if he makes a deliberate and dangerous hit if a player gets injured, but they rarely seem to do anything over an attempted dangerous hit.

An example of this occurred last week in a game on November 2nd between the Vancouver Canucks and the Toronto Maple Leafs.Henrik Sedin, star centre of the Vancouver Canucks, cut to the front of the net and as he did so, Joffrey Lupul of the Maple Leafs, stuck out his elbow and took a run at Sedin.Sedin later said that he saw the elbow coming for his head out of the corner of his eye and was able to duck out of the way at the last minute.Lupul came at such speed that when he missed Sedin’s head, his momentum carried him forward and he ended up hitting his teammate Nazem Kadri in the head with his elbow.The game was being broadcasted by CBC as part of their Hockey Night in Canada program and it was astounding that the commentators did not reference this attempted dirty hit nor was there a replay shown of it during the game.It may have gone entirely unnoticed if not for social media, which picked up on it and the video clip went viral following the game.

The first time I watched the video, I thought it was hilarious that Lupul ended up elbowing his own teammate in the head.Only later did I realize how bad that could have been if Lupul’s cheap shot had actually connected with Sedin’s head when he was in a vulnerable position.Henrik Sedin is one of the star players on the Vancouver Canucks and is currently tied for third in points in the NHL this season.He also is second in the active Ironman streak in the league that recognizes most consecutive games played.That could have all ended had Lupul’s elbow connected.The Canucks were dominating the Leafs and Lupul must have been frustrated or angry because there is no doubt that he deliberately tried injuring Henrik Sedin with an elbow to the head.It amazes me that the league lays sanctions on players if they injure their opponent, but that there are no sanctions for deliberate attempts to injure that do not work.Even if the referees on the ice did not see Lupul’s attempt to injure another player, there is no way that the NHL did not see that play later on as it went viral.  How do you send a message that illegal checks to the head are not OK and are a suspendable offence, but attempting a check to the head is not a big deal as long it doesn’t connect?

In today’s day and age when there is so much evidence of the detriment of brain injuries, it makes zero sense not to punish players for attempting illegal shots to the head.As a Vancouver Province blogger stated, it makes no sense that someone would have to potentially concuss another player before they get suspended, yet they can attempt it as many times as they want without risk, until they connect.  

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“The Sean Avery Rule”

November 4, 2013

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By Kevin Robertson – Thompson Rivers University 2L JD Student

Few in the game of hockey are more loathed than Sean Avery. However, it is not for his devastating skill but instead for his tendency to push the grey area of the rules a tad to far.  One such incident occurred in April 2008 during a playoff game between the New Jersey Devils and the New York Rangers. Avery, playing for the Rangers, occupied his usual spot in front of the opposing goalie but then he did something unheard of in his attempt to block the goalies view, he turned around. 

Having a (usually large) player stand in front of the goalie in an attempt to block their view is a standard procedure. However, it has always been done with the players back to the goalie (face to the puck). The benefit of this is that the player can watch for the puck and potentially deflect it into the goal.  In fact, the move is so common it even has a name: screening the goalie. 

Most goalies attempt to overcome the body in their way by either looking over the players shoulder or to the side of the body. This has always worked because the player has to split attention between the puck and the location of the goalie.  When Avery turned his body to face the goalie (in this case Martin Brodeur) he completely disregarded the puck and instead focused solely on obstructing the goalies view. Now Avery did not simply stand there and let his body block the view of the goalie, instead he waived his hands in front of the goalies head. 

While Avery did not break any sort of established rule many players complained that it should not be allowed. Montreal Canadians goalie Carey Price even went so far as to state that “it’s almost an unwritten rule.” 

What is most shocking is the speed by which the NHL had reinterpreted an existing rule to prevent the type of play from happening again; it was ready to go the day after the game. Colin Campbell, the NHL director of hockey operations clarified the rule saying that:

“An unsportsmanlike conduct minor penalty will be interpreted and applied, effective immediately, to a situation when an offensive player positions himself facing the opposition goaltender and engages in actions such as waving his arms or stick in front of the goaltender’s face, for the purpose of improperly interfering with and/or distracting the goaltender as opposed to positioning himself to try to make a play,”

The most interesting aspect was not that the NHL desired to end this type of conduct (this view was widely supported throughout the league), it was the speed and monopolistic manner with which they reinterpreted a rule to cover a situation that was not contemplated in the first place.

Nowhere in Rule 75 of the NHL’s official rules (which outline unsportsmanlike penalties) does it forbid “improperly interfering” or “distracting the goaltender” (wouldn’t a team encourage this?). The only way that the rule change could be situated as any sort of “reinterpretation” would be if one considered Avery’s conduct to be “disorderly” (which would place it in violation of Rule 75.1). In effect, the NHL used a catch-all provision regarding disorderly conduct on the ice to ban this type of maneuver. 

Whatever a person’s opinion is regarding the rule itself, it is disconcerting how the NHL was able to essentially impose a new rule on the game in such a short time period without consulting with NHL Players Association. Such a short turnaround can only occur in a situation where the governing body has complete and utter authority to act in a monopolistic manner. 

To put this in perspective, typically a rule change would be a 3-step process consisting of General Managers recommending a rule change, the Competition Committee (half players and half club officials) which ordinarily meets twice a year to analyze the proposed changes, and the Board of Governors who then votes on it. Historically rules changes have also been tested in either other leagues or pre-season games before they are ratified. 

Only after all steps are complete does a supported rule change become active. 

There was no reason, such as immediate player safety, to circumvent the established rule change process. It appears that the NHL wished to save face by outlawing the screening of a goalie’s face à la Sean Avery.  The NHL has shown that they can effectively alter the rules on the fly by disregarding the established process. It is surprising that the NHLPA did not publicly decry the procedure through which the rule change was instigated. It is hoped that future instances of rule changes made in response to an unforeseen development on the ice will conform to the collective agreement and due process.

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To fight or not to fight that is the question

October 30, 2013

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By Hafiz Karim – Thompson Rivers University 2L JD Student

Fighting in hockey: it has always been a contentious issue, but will it be taken out of the National Hockey League in the near future?  

Rule 46 of the Official NHL Rulebook governs fighting in the NHL.It sets out the criteria for what constitutes a fight, what the rules of a fight are, fines as well as everything else related to an NHL fight.Fighting has always been a part of the game and many are emphatic that fighting needs to remain in the game or the sport of hockey will not be the same.Most teams in the NHL have at least one player who acts as the designated tough guy or goon, and if fighting were no longer in the game, most of them would be out of a job.It is understandable that this group of players does not want fighting to be taken out of the game.Perhaps surprisingly, it is not only this small group of players who want fighting to remain in the game.In a recent article, Kevin Bieksa of the Vancouver Canucks stated that “we’ll play with a tennis ball before we take fighting out” when asked about whether fighting should be removed from the NHL.Players around the league echoed Bieksa’s comment. 

For the most part, fans of the game of hockey love the fights that often occur.This is evidenced in the fact that the crowd at any arena in the NHL erupts and goes wild whenever there is a fight.Based on the reactions of the spectators, it seems that most of them get more excited about a fight than a goal.  This tells you a lot about how fans of the game view fighting in the NHL. 

Another popular view of why many players and fans believe that fighting should remain in the game is expressed by Vancouver Canucks’ enforcer Tom Sestito.Sestito states, “if you don’t have fighting in the game, there are going to be a lot of dirty hits.”He is referencing the idea of accountability on the ice and he believes that fighting holds players accountable.The idea is that without the threat of being challenged to a fight, there is no accountability and that injuries will actually increase because there will be more dirty hits.

Between player and fan support of fighting in the NHL, it seemed like it was going to stay.However, due to an event earlier this month, the debate of whether to remove fighting or not reopened.On the night of October 1st, in a game between the Toronto Maple Leafs and Montreal Canadiens, Colton Orr and George Parros, the respective enforcers for their teams squared off.The two started throwing punches, which led to Orr losing his balance and falling down.Orr still had a hold of Parros’ jersey as he fell and as Parros threw a punch, he too lost balance and fell face first into the ice.Parros was knocked unconscious, suffered a concussion and had to be taken off the ice in a stretcher. 

This event caused four NHL general managers to come out and speak publicly against fighting in the NHL.Tampa Bay’s Steve Yzerman, Carolina’s Jim Rutherford, Pittsburgh’s Ray Shero and St. Louis’ Doug Armstrong all publicly said it was time that the league took a tougher stance on fighting.  This was significant because in the past the argument was that it was only the media who spoke out against fighting but the “real” hockey people recognized the value of fighting.That argument was laid to rest with the statements made by these general managers.Rutherford was very blunt and stated, “we’ve got to get rid of fighting.It has to go.” Yzerman made a strong argument by pointing out the efforts the league goes through to reduce head injuries by penalizing and suspending players for making contact with the head but they still allow fighting.He goes on to say that “we’re stuck in the middle and need to decide what kind of sport do we want to be.Either anything goes, and we accept the consequences, or take the next step and eliminate fighting.”

Will the NHL re-examine their policy on fighting in the league after the Parros injury and the public statements made by four of their general managers or will they continue to allow fighting in the league?Only time will tell.

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A Look at the NHL’s Pre-Season Suspensions

October 4, 2013

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By Mark Weir – Thompson Rivers University 3L JD Student

Earlier this National Hockey League pre-season, NHL Senior Vice President of Player Safety and Hockey Operations Brendan Shanahan handed down a trio of suspensions which sparked some controversy amongst the league and its fans.The incidents which lead to the disciplinary actions taken by the league came from two separate incidents in games being played 3,500 kilometers apart in Edmonton, Alberta, and Toronto, Ontario, and perhaps if they had occurred at different points in the season the decisions would not have warranted such scrutiny.

The players involved in each of the suspensions are: David Clarkson, a Toronto Maple Leafs forward who was suspended for 10 regular season games but is allowed to finish out the pre-season; Zack Kassian, a Vancouver Canuck forward, suspended for 5 regular season games, and the remainder of Vancouver’s pre-season; and Phil Kessel, the all-star forward for the Toronto Maple Leafs who was suspended for Toronto’s remaining 3 pre-season games.

There is really no controversy over Clarkson’s suspension.The case made by the NHL is quite clear.Clarkson left the Maple Leafs’ bench on an illegal line change in order to join an on ice altercation.The NHL has an entire section in its rules (Rule 70) pertaining to “Leaving the Bench.” According to Rule 70.10, “The first player to leave the players’ or penalty bench during an altercation or for the purpose of starting an altercation from either or both teams shall be suspended automatically without pay for the next ten (10) regular League and/or Play-off games of his team.”

There is no grey area when it comes to this rule.The NHL followed their rules to the letter on this case.

Why then were the other two suspensions from last week so disproportionate?

The suspension to Kassian was awarded as the result of an errant high stick which caught the mouth of Edmonton Oiler forward, Sam Gagner.The incident resulted in a broken jaw for Gagner, and a four minute double-minor penalty awarded to Kassian for his on ice actions.

Kessel’s incident, on the other hand, was far more deliberate.While lining up for a face-off midway through the third period, Kessel was challenged to a fight by Buffalo Sabres enforcer John Scott who at 6 foot 8 inches and 270 pounds is 8 inches and 70 pounds bigger than Kessel.Since Kessel is a super-star, and not a fighter, it was not too surprising to see his initial reaction, which was to slash his stick in order to keep Scott at bay until Kessel’s teammates arrived to back him up.It was the actions which followed which landed Kessel his suspension.After his initial slash of Scott, Kessel’s teammates came in and took the big man to the ground.It was at this point that Kessel deliberately took another slash at Scott’s ankle with what looks like a clear intent to injure, after which Kessel speared Scott with the blade of his stick while Scott was being detained by an official.  Kessel’s actions bought him a match penalty, and he was ejected from the game.

These incidents invite the question how did Brendan Shanahan and the NHL decide on the appropriate suspension time for the two offenders in question? Having occurred on the same night, these two incidents provide an excellent juxtaposition of two disciplinary decisions being brought down for two very different, but both serious scenarios.

In the case of Kassian, we have a severe injury, but without intent to injure.Kassian made an undisciplined play, and let his stick get away from him.But one cannot say with certainty that Kassian meant to hit Gagner in the face with his stick, or that he even intended to get his stick up that high.In the case of Kessel, we have no injury sustained on the part of Scott, but there is a quite clear intent to injure a player who not only has his back turned to the offender, but who, at the time, was pre-occupied fighting two other players.

The NHL seems to be disciplining players based on the result of their actions, and not the intent of their actions.The on-ice officials on the other hand seem to be doing the opposite.

Is the NHL protecting its superstars? Is it really only concerned with the injury sustained from a player’s misconduct? Or should intent be factored into the disciplinary decisions of the NHL?

There needs to be a more consistent method of disciplining players who have broken rules which could lead to injury.No one is saying that Shanahan has an easy job, and he’s not going to be able to please everyone with his decisions.  However, if he continues to hand out decisions like these, the controversies will never subside.

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Hockey coach sentenced to 2 years for multiple sexual assaults to minors

March 23, 2012

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In a case whose perpetrator’s actions span three decades and has attracted a considerable amount of attention, former hockey coach Graham James was sentenced three days ago to two years in prison for sexual assault. James plead guilty to sexually assaulting two teenage boys hundreds of times while they were players on teams he coached.

James is a former Western Hockey League Coach of the Year and 1989 Hockey News Man of the Year. James had been previously convicted of a sexual assault in 1971 and was also sentenced to three-and-a-half years in 1997 for sexually assaulting two other boys, including former National Hockey League (NHL) player Sheldon Kennedy.

The sentencing for his most recent conviction has properly generated wide-spread criticism.

Provincial Court Judge Catherine Carlson accounted for the abuse of trust, the degrading and humiliating nature of the sexual assaults – repeated hundreds of times to victims under the age of 18 – and whose cumulative effect has been significant and devastating to victims Todd Holt and Theoren Fleury.

However, Carlson J. also pointed out that Mr. James expressed remorse, apologized to his victims and has experienced what she called ‘an extreme degree of humiliation’ – factors that warranted a reduction in his sentence from a possible maximum of 10 years to the two year sentence handed down.

A Globe and Mail editorial (click here to read) entitled ‘Judge didn’t grasp magnitude of James’s crimes’ accurately, in my view, captures the criticism: ‘There is something annihilationist about what he did. It was an obliterating violence he committed on their sense of personhood, repeated over and over and over and over. These crimes need a sentencing approach that recognizes the difference between one or two sexual assaults and the hundreds that Mr. Holt and Mr. Fleury endured. Not a single one of those assaults should receive a sentencing discount …. [H]is behaviour needs to be denounced to express society’s revulsion and pain at the victimization of the vulnerable, and at the abuse of trust. Provincial Court Judge Catherine Carlson spoke of that abuse, of degradation, of the total control exercised by Mr. James, but then gave him credit for an expression of remorse, an apology, the “extreme degree of humiliation” he experienced and his willingness to come back from Mexico without an extradition hearing. He deserved no such credit.’

A two year prison sentence for savage predation upon two vulnerable and trusting human beings is not enough.

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