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National Hockey League v. National Hockey League Players' Association

United States District Court, S.D. New York

March 15, 2017

National Hockey League, Plaintiff,
v.
National Hockey League Players' Association, Defendant.

          MEMORANDUM & ORDER

          ALISON J. NATHAN, District Judge

         On June 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.

         I. Background[1]

         1. The Collision

         On 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 penalty.

         2. The Collective Bargaining Agreement

         The NHL 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.

         Procedurally, 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.

         The 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." Id.

         3. Wideman's Penalty and the Subsequent Appeals

         On 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.

         4. The Commissioner's Decision

         On 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.[2] 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.

         In a 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.

         In 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.[3]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.

         The 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.

         5. The Arbitrator's Decision

         The 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.[4] 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.

         The NHL 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 specific ...


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