Saturday, 24 March 2012

What the NHL Can Learn From The Good Wife

The latest episode of The Good Wife, titled “Gloves Come Off”, added a bit more tarnish to the image of the NHL.  The law drama tackled the issue of a hockey league being sued because of its indifference to concussions in general and specifically one player whose career ended due to a fight.  As I watched I wondered how far the script was from reality.

Now I’m not a lawyer, just a hockey fan with a strong bias towards eliminating fighting from the game and perhaps too much imagination.   But using some common sense, and my limited viewing experience of past episodes of Law & Order, here is a potential nightmare scenario for the NHL and NHLPA.

At some point in the future it’s conceivable that a group of former enforcers could band together and pursue a class action lawsuit against the NHL and NHLPA.  Perhaps better diagnostic processes will be invented that can detect CTE, the progressive degenerative disease found in individuals who have been subjected to multiple concussions.  Today this diagnosis can only be made during an autopsy but with advances in medical equipment it may become possible to diagnose individuals while they are still alive.  If you get enough journeyman enforcers, all of whom were at the lower end of the NHL pay scale, leaving the doctor’s offices after getting the bad news and their initial thoughts might be how they were used and thrown away by the league and the players association.

The NHL will hire a quality legal team and gather at the league offices to begin work on the defense.  They will need to show that the enforcers knew what they were getting into and that the league did not coerce them to play or condone unnecessary violence, while at the same time ensuring player safety was paramount.  They may run into a few issues when they look at demonstrated behaviour and documentation related to the fighting issue.

Despite some ugly hockey fights this past season, including several brawls between the Rangers and Devils mere seconds after the puck is dropped, the NHL and NHLPA almost never respond publicly.  After the most recent Rangers-Devils line brawl there was a brief statement from Colin Campbell that they will look at possible rule changes to try and remove these types of incidents from the game.  But despite the majority of the media condemning both coaches and the league, and even pro-fighting fans commenting that this was a disgrace, there was no statement from the NHL.  Any other professional league would have come down hard on the players and team management to send a message that fighting has no place in their sport.  The NHL’s silence could be construed by the courts to signal ambivalence and that this was "business as usual".

Even wiith minor and infrequent rule changes over the years, the NHL and NHLPA have done little to work together to reduce fighting or protect their players.  The NHL certainly has not pushed for any major changes and Bettman, when questioned on the subject, supports making no changes.  Even more telling, the league actually promotes fighting - the video from the Rangers-Devils brawl was featured on the NHL website.  The league's broadcast partner in Canada, the CBC, starts off the NHIC show with the theme song, "Saturday Night's Alright for Fighting".  The NHLPA is also complacent about the issue and recent surveys by HNIC and Sports Illustrated have documented that 98% of players are firmly against banning it altogether.  Nothing here would demonstrate to a jury or judge that they are working together to reduce the risk to enforcers.

Fighting is tolerated by both the league and the players association, has been for years and there is no indication that this is about to change.  The rules against fighting are lax and go as far as to explain how the players should fight.  The players are actually penalized for wearing equipment during a fight that might protect them, such as gloves or visors.  The league is more concerned about the player’s hands being injured and less so about broken facial features or head trauma.  NHL on ice officials, the referees, stand back and let the players punch each other in the face.   And hockey is the only professional sport where the NHL and NHLPA support a place on the roster for a player whose primary role is to break the rules.  A defense lawyer would have a tough time explaining those facts.

I think that any lawyer, leading a class action lawsuit, could put all of that together and successfully take on the NHL and NHLPA.  I don’t think this is as far-fetched as it might seem and it would be a serious blow to hockey’s image.  The stakeholders for the league and for the players association should take a serious look at this scenario and determine the risk and take appropriate action.  The good news for hockey fans that are tired of fighting ruining the game is that any review would deliver positive benefits.  We would get more skill on display, less interruptions to the fast paced play and a decrease in cheap shot penalties earned by 4th line players whose only role is geared toward revenge and pay-back.

NY Times Article:
Scans Could Aid Diagnosis of Brain Trauma in Living

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