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Linesmen checked by Dennis Wideman out for season
0:54 | NHL
Linesmen checked by Dennis Wideman out for season
Friday July 29th, 2016

The legal impact of Deflategate on other professional sports leagues has officially surfaced.

On Friday, the National Hockey League Players’ Association filed a motion to dismiss with Judge Alison Nathan of the U.S. District Court for the Southern District of New York—the same federal court where Judge Richard Berman ruled for Tom Brady last September. The NHLPA's motion repeatedly cites NFL Mgmt. Council v. NFLPA and Tom Brady for support while seeking the dismissal of a federal lawsuit filed by the National Hockey League on June 8 that centers on the March 10 decision by neutral arbitrator James Oldham to reduce Calgary Flames defenseman Dennis Wideman’s suspension for hitting an on-ice official from 20 to 10 games.

The path to court

Wideman’s suspension stems from his collision with linesman Don Henderson in a Jan. 27 game between the Flames and Nashville Predators. Wideman hit Henderson from behind with the shaft of his stick, concussing and sidelining him for the remainder of the season. Wideman’s collision triggered a league review under Rule 40 of the NHL rulebook. Rule 40 prohibits physical abuse of officials. It dictates that a player who deliberately applies physical force to any official be suspended for at least 10 games—and at least 20 when that player applied force with the intent to injure. NHL Senior Executive Vice President of Hockey Operations Colin Campbell concluded that Wideman possessed the intent to injure Henderson. In accordance with Rule 40, Campbell suspended Wideman for 20 games.

The NHLPA disagreed with Campbell’s conclusion and exercised its right under Article 18 of the collective bargaining agreement to appeal Wideman’s suspension to NHL Commissioner Gary Bettman. In its appeal, the NHLPA maintained that Wideman could not have acted from the requisite intent. Indeed, seconds before hitting Henderson, Wideman had been body checked by Predators' forward Miikka Salomaki and the check causedthe Flames defenseman to suffer disorientation and concussion-related symptoms.

Bettman nonetheless found clear and convincing evidence that the 20-game suspension was warranted. Among other points raised in his Feb. 17 decision, Bettman placed significance in Wideman acknowledging that his hit on Henderson was “the kind of blow that can reasonably be expected to cause injury.” Since Wideman admitted to knowing the danger of his conduct, Bettman imputed intent. The suspension was set to cost Wideman approximately $565,000 in lost salary.

NHL
Bettman shows unsettling bias in Wideman appeal

If Wideman “enjoyed” the same legal rights as an NFL player, the story would have ended with Bettman’s ruling. But in the NHL, players can receive what amounts to a second appeal under Article 18. Even better for players, a neutral arbitrator hears this second appeal. The NHLPA exercised such a right and Oldham, a Georgetown University law professor and expert in labor and employment law, heard the appeal. Although Oldham concurred with Bettman that a suspension was warranted, he reasoned that Wideman lacked the intent to injure. Oldham highlighted his review of the available video evidence. The video, according to Oldham, showed that Wideman’s head was fixated on returning to the Flames’ bench. Further, Wideman was not looking in Henderson’s direction—as Wideman presumably would have if he desired to injure the official—and Wideman could not have seen Henderson fall. Therefore, Oldham ruled that Wideman should only be suspended for 10 games.

By the time of Oldham’s ruling, Wideman had served 19 of the 20 games for which he had been suspended. The reduction to 10 meant that Wideman would be owed a sizable refund. The NHL was outraged and, just like Brady and the NFLPA last year, filed a lawsuit in hopes of persuading a federal judge to vacate the arbitration award.

Deflategate litigation turned on its head

Notice that in the Wideman litigation, the NHL and NHLPA have adopted opposite positions from those played by the NFL and NFLPA in the Brady litigation. Whereas the NFLPA and Brady sought to vacate Goodell’s decision, the NHLPA seeks to prevent Oldham’s from being vacated.

In its motion to dismiss, the NHLPA contends that the April 25 decision of Judges Barrington Parker, Jr. and Denny Chin in the NFL’s favor is particularly meaningful. NHLPA attorneys insist that, “the NHL entirely ignores the well-established principle, recently re-affirmed by the Second Circuit in a case involving the discipline of an NFL player, that ‘a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential—indeed, among the most deferential in our law.’” The union’s attorneys also cite the April 25 decision for its proposition that even if Goodell was completely wrong about the facts surrounding Brady and Deflategate, that alone would not constitute grounds to vacate Goodell’s arbitration award. In striking contrast, the NHL has argued that Oldham’s award reflects “his own brand of industrial justice” and one that extends beyond the scope of the CBA—in other words, the NHL’s language mimics that of Brady.

• ​U.S. Senator responds to Bettman’s concussion stance

Like Brady, the NHL faces long odds in this case. Federal courts rarely vacate arbitration awards. Courts generally reason that if management and labor agree to a form of dispute resolution, they also agree to the possibility of resolutions that will prove disappointing or even infuriating. Further, even if the NHL convinces Judge Nathan that she ought to vacate Oldham’s award, the NHLPA would then appeal Judge Nathan’s order to the U.S. Court of Appeals for the Second Circuit—the same court where the NFL beat Brady on appeal.

It will be weeks, if not months, before Judge Nathan rules on the NHLPA’s motion to dismiss. In the meantime, don’t put away those Deflategate legal briefs quite yet.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.

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