United States District Court, S.D. New York
MEMORANDUM & ORDER
J. NATHAN, District Judge
8, 2016, the National Hockey League ("NHL") filed a
Complaint in the Southern District of New York, seeking
vacatur of the March 10, 2016 arbitral decision of James
Oldham reducing the suspension of NHL player Dennis Wideman
from 20 games to 10. See Dkt. No. 1 (hereafter the
"Complaint"). Before the Court are a set of
dispositive motions. First, the National Hockey League
Players' Association (hereafter "Players'
Association"), the Defendant named in the Complaint,
moves to dismiss the Complaint on procedural grounds.
See Dkt. No. 14 (hereafter "Motion to
Confirm"). In the alternative, the Players'
Association moves to confirm the arbitration award. See
Id. Second, the NHL moves for summary judgment on the
question of whether the Court should vacate the arbitration
award. See Dkt. No. 19 (hereafter "Motion to
Vacate"). For the reasons that follow, the Court denies
the Players' Association's motion to dismiss on
procedural grounds but grants the Players'
Association's motion to confirm the award. Accordingly,
the Court denies the NHL's motion for summary judgment.
January 27, 2016, at a NHL game between the Calgary Flames
and the Nashville Predators, Miikka Salomaki (a
Predators' player) legally cross-checked Dennis Wideman
(a player for the Flames), causing Wideman's head to hit
the boards, and causing Wideman to suffer a concussion.
See Dkt. No. 1, Ex. 4, at 6 (hereafter,
"Opinion of Arbitrator" or "Arb. Op.");
Dkt. No. 1, Ex. 3, at 1 (hereafter, "Opinion of
Commissioner" or "Comm. Op."). Wideman
remained in a crouched position for several seconds, after
which he rose and began skating towards the Flames'
bench. See Arb. Op. at 6; Comm. Op. at 1. He raised
his stick and touched it to the ice, to signal to his fellow
teammates his desire to switch out with another player.
See Arb. Op. at 6. At the same time that Wideman was
skating towards the Flames' bench, linesman Don
Henderson, a hockey official, was skating backwards towards
Wideman. See Arb. Op. at 7; Comm. Op. at 1. Just
before the two men - player and official - collided, Wideman
raised his hockey stick in the air so that the stick made
contact with Henderson's back. See Arb. Op. at
7; Comm. Op. at 1. Henderson promptly fell to the ice,
hitting his head on the boards as he fell; Wideman continued
to the Flames' bench. See Arb. Op. at 7. Both
men were ultimately diagnosed as suffering from concussions:
Wideman's stemming from the legal cross- check he
received from Salomaki; Henderson's from the collision
and fall. See Arb. Op. at 7; Comm. Op. at 1. This
case stems from the subsequent discipline Wideman received
from the NHL for injuring Henderson, and the decisions of two
arbitrators first affirming, and then modifying, the imposed
The Collective Bargaining Agreement
is authorized to impose "supplementary discipline"
on players, like Wideman, for conduct during a game pursuant
to a collective bargaining agreement entered into on
September 16, 2012, between the NHL and the Players'
Association. See generally Dkt. No. 1, Ex. 1
(hereafter, "CBA"). Substantively, the CBA lays out
several factors that guide the NHL in imposing such
discipline: first, "[t]he Type of conduct
involved," including whether "the conduct is
intentional or reckless"; second, the "[i]njury to
the opposing Player(s) involved in the incident"; third
"[t]he status of the offender and, specifically, whether
the Player has a history of being subject to Supplementary
Discipline for On-Ice Conduct"; fourth, "[t]he
situation of the game in which the incident occurred";
and fifth, "[s]uch other factors as may be appropriate
in the circumstances." Id. Art. 18.2.
the CBA describes a series of hearings and appeals governing
the imposition of certain penalties. As relevant here, if a
preliminary review of the incident giving rise to a potential
penalty suggests that the NHL will impose a penalty
comprising a suspension of six or more games, "an
in-person hearing will be conducted." Id, Art.
18.9. Any penalty imposed by the NHL after such a hearing is
then appealable, by the Players' Association (on the
player's behalf), to the NHL Commissioner. See
Id. Art. 18.12. If the penalty imposed by the NHL
resulted in a suspension of six or more games, the
"Commissioner shall conduct an in-person hearing."
Id. At that hearing, the Commissioner then must
determine "whether the decision [of the NHL] was
supported by clear and convincing evidence," and, in
making this determination, will "have the authority to
consider any evidence relating to the incident even if such
evidence was not available at the time of the initial. . .
[disciplinary] decision." Id.
decision of the Commissioner is final in all cases resulting
in suspensions of five or fewer games. Id. However,
if the Commissioner agrees that clear and convincing evidence
supports imposition of a suspension of six or more games, the
Players' Association has one more avenue of appeal under
the CBA: the Players' Association may appeal to a
"Neutral Discipline Arbitrator" (hereafter
"Arbitrator"), an arbitrator jointly appointed by
the parties who "should have substantial experience as
an arbitrator or judge." Id. Art. 18.13-14. The
Arbitrator is directed, under the CBA, to hold an in-person
hearing, at which he must determine "whether the final
decision of the League regarding whether the Player's
conduct violated the League Playing Rules and whether the
length of the sentence imposed were supported by substantial
evidence." Id. Art. 18.13. As it does with the
Commissioner, the CBA provides the Arbitrator "the
authority," at that hearing, "to consider any
evidence relating to the incident even if such evidence was
not available at the time of the initial [hearing] or at the
time of the Commissioner's decision in connection with
the [first] appeal." Id. The CBA also states
that "[t]he [Neutral Discipline Arbitrator] shall have
full remedial authority in respect of the matter should
he/she determine that the Commissioner's decision was not
supported by substantial evidence," and that "[t]he
[Neutral Discipline Arbitrator's] decision shall be final
and binding in all respects and not subject to review."
Wideman's Penalty and the Subsequent Appeals
February 3, 2016, the NHL, following an in-person
supplementary discipline hearing in Toronto, imposed a
20-game suspension on Wideman for conduct violating Rule 40
of the NHL player's rules. See Comm. Op. at 2.
Rule 40 governs the "physical abuse of officials."
See Dkt. No. 1, Ex. 2 (hereafter "NHL Off.
Rules"). The Rule states that "[a]ny player who
deliberately applies physical force in any manner against an
official. . . shall receive a game misconduct penalty."
See NHL Off. Rules § 40.1. In particular, Rule
40 lays out three kinds of automatic suspensions relating to
injury of an official (the third of which is not relevant
here). Rule 40.2 governs the most severe conduct under the
rule: "Any player who deliberately strikes an official
and causes injury or who deliberately applies physical force
in any manner against an official with intent to injure, or
who in any manner attempts to injure an official shall be
automatically suspended for not less than twenty . . .
games." Id. § 40.2; see also Id.
("For the purpose of the rule, 'intent to
injure' shall mean any physical force which a player knew
or should have known could reasonably be expected to cause
injury."). In contrast, Rule 40.3 governs serious, but
less severe, conduct: "Any player who deliberately
applies physical force to an official in any manner
(excluding actions as set out in [Rule 40.2]), which physical
force is applied without intent to injure . . . shall be
automatically suspended for not less than ten .. .
games." Id. § 40.3. Automatic suspensions
under the NHL Official Rules are imposed when a "game
misconduct penalty" is called during a game,
see Comm. Op. at 4, and no such penalty was called
during the game in which Wideman collided with Henderson,
see Id. Nevertheless, the NHL relied on Rule 40 as a
touchstone for its inquiry into supplementary discipline,
concluding that Wideman's conduct met the relevant
definition of intentional or reckless conduct under Rule 40.2
and that a 20-game suspension was warranted. Id. at
2. Pursuant to the CBA, the Players' Association appealed
to the Commissioner.
The Commissioner's Decision
February 10, 2016, NHL Commissioner Gary Bettman presided
over a hearing, pursuant to Article 18.2 of the CBA, to
review the determination of the NHL. See Comm. Op. at 2.
At that hearing, the principal evidence consisted of video
footage of the collision. See Arb. Op. at 1
(describing the earlier hearing). Additionally, Wideman
testified on his own behalf, and the Players' Association
presented video footage of other on-ice collisions between
players and officials that did not result in supplementary
discipline, seeking to demonstrate that Wideman's actions
were similar. The Players' Association also presented the
testimony of two physicians, Dr. Paul Comper and Dr. Jeffrey
Kutcher, experts in concussions and related symptoms, who had
conducted interviews with Wideman over "face time"
several days after the January 27thincident.
See Id. at 1-2. The NHL presented the testimony of
Don Henderson, the lineman with whom Wideman had collided.
Id. at 1.
decision issued a week later, the Commissioner found that
clear and convincing evidence supported the NHL's
imposition of a 20-game penalty. See Comm. Op. at 1.
The Commissioner began by observing that, though NHL Rule 40,
governing player physical abuse of officials, was not
directly apposite (as no game misconduct penalty was called),
it was the appropriate touchstone for the Commissioner's
inquiry, in concert with those other factors listed under
Article 18.2 of the CBA. See Id. at 4-5. The
Commissioner then concluded that "Mr. Wideman [in
striking Henderson with the shaft of his hockey stick]
deliberately applied physical force in a way that a player
would know (or should know) could reasonably be expected to
cause injury," rendering Rule 40.2 the appropriate rule,
and the 20-game suspension the appropriate penalty.
Id. at 7.
reaching this determination, the Commissioner relied
primarily on video footage of the incident. See Id.
at 21 ("In sum, I find that the expert testimony
presented on behalf of the Player was speculative, at times
contradictory, lacked support, and was wholly insufficient to
rebut the clear and convincing evidence provided by the video
footage of the incident."). He did, however, make
various findings as to the other evidence in the record
before him. First, he addressed Wideman's testimony. The
Commissioner noted that Wideman himself had acknowledged that
"his blow to Mr. Henderson's back was the kind of
blow that can reasonably be expected to cause injury."
Id. at 1.He then observed that Wideman had
offered no explanation "why he had lifted the stick with
both hands before even reaching the linesman."
Id. Additionally, the Commissioner observed that,
though the Players' Association had presented evidence of
other collisions that did not result in any disciplinary
action, these incidents were not analogous, as they occurred
in the midst of "[hockey] play[s]" and had been
observed by referees when they occurred. See id.
Commissioner next rejected the Players' Association's
argument that Wideman's concussion rendered him
"confused and/or physically incapable of avoiding
contact with Mr. Henderson," and that the collision was
therefore "not deliberate." Id. at 7-8.
First, in assessing testimony of Drs. Comper and Kutcher, who
offered purportedly expert opinions that Wideman was
suffering from various concussion-related symptoms after
being checked by Salomaki that could affect his intent, the
Commissioner noted that these doctors "interview[ed
Wideman] several days after the incident (and after his
symptoms had resolved)," id. at 8, and that
their testimony suffered from inconsistencies and other
problems that dulled its weight, id. at 11. In
particular, the Commissioner noted that the video footage
contradicted the experts' testimony, see Id. at
16, and noted that, upon his review of the footage, Wideman
had "skated directly to the bench with his head up
[after being checked by Salomaki] and gave no indication that
he was confused (e.g., he did not hesitate, he did not skate
in the wrong direction, or to the wrong bench or to the
penalty box)," rendering the concussion narrative
unconvincing, id. at 17.
The Arbitrator's Decision
Players' Association appealed to the Neutral Discipline
Arbitrator, James Oldham, under Article 18.13 of the CBA.
From February 25-26, 2016, the Arbitrator conducted a two-day
hearing to address Wideman's culpability. See
Arb. Op. at 3. At that hearing, both the NHL and the
Players' Association (on behalf of Wideman) presented
additional witnesses who had not testified before the
Commissioner. First, the Players' Association presented
the testimony of Matthieu Schneider, the Special Assistant to
the Executive Director of the Players' Association, and a
former professional hockey player, and Brad Treliving, the
General Manager of the Flames (Wideman's hockey team).
See Arb. Op. at 3; see also Arb. Tr. at
328, 356. As part of his testimony, Schneider provided a
frame-by-frame interpretation of the video of the collision.
See, e.g., Id. at 365. He testified that, in his
estimation as a professional hockey player, Wideman lost
control of his body when he initially was hit by Salomaki,
and that certain of Wideman's movements after the
Salomaki check supported, in Schneider's view, such a
conclusion. See Id. at 331-33, 370. As to the moment
that Wideman raised his hockey stick and hit Henderson,
Schneider testified that his review of the video suggested
that it was best interpreted as a reflex action, rather than
a deliberate strike. Id. at 335. Treliving, for his
part, testified that Wideman had indicated shortly after the
incident that the collision was accidental, a position with
which Treliving agreed upon viewing the video himself.
See Id. at 409-10.
also offered two new witnesses: Stephen Walkom, the Senior
Vice President and Director of Officiating for the NHL, and
Dr. Ian Auld, the lead team physician for the Flames. Arb.
Op. at 3. Walkom provided his interpretation of the video
footage and the incident. See Arb. Tr. at 472.
First, asked whether he had ever "seen anybody hit [an]
official out of retaliation for being hit by a [fellow]
player," Walkom responded that, apart from the instant
incident, he had not. See Id. at 492-93. Though
Walkom generally testified that Wideman should have known
that his strike against Henderson's back would cause
injury, see Id. at 460, he repeatedly stated that
Wideman had likely made a mistake, before ultimately
concluding "[m]y testimony is . . . that [Wideman] was
upset, he's skating to the bench, and he made a mistake,
and he cross-checked the linesman, and he knocked him to the
ice with enough force to hurt him, even though he probably
didn't intentionally mean to hurt him. That's my
testimony." Id. at 493. Dr. Auld, for his part,
testified as to his observations of Wideman after the
incident. He averred that he did not examine Wideman until
after the game because he did not believe he saw "any