Breaking down Gary Bettman’s Wideman decision

Earlier today, National Hockey League commissioner Gary Bettman released his verdict in Dennis Wideman’s appeal of his 20 game suspension, with Bettman upholding the initial decision by Colin Campbell. (Wideman and the NHLPA will appeal, the final appeal they can make.) Bettman’s full appeal decision is 23 pages long.

To save you the trouble of all that reading, we decided to read it for you and break out the relevant passages and arguments.

After spending a few pages reviewing procedural matters – the date and order of the events in question, and some details about the appeal hearing itself – we get to the first juicy part: the rules.

In providing the justification for the supplemental disciple and the degree to which it was warranted, Bettman cites two rules: “Playing Rule 28” and “Playing Rule 40.” For your benefit, here are the relevant passages.

Basically, they cite Playing Rule 28 as justification for investigating the incident at all – basically saying “Hey, we know Wideman wasn’t penalized for this play, but we have the ability to investigate any incident that we want.” In addition, they cite Playing Rule 40 to determine the necessity and severity of the supplemental discipline.

Further, Bettman cites Section 18 of the CBA (in regards to Supplemental Discipline) and details four factors that he uses to determine the amount of supplemental discipline the situation calls for.

Using the Playing Rule 40 provisions as handy (but non-binding) minimums, he notes the concussion suffered by Don Henderson among the reasons that 20 games is appropriate.

You may notice that two of the aforementioned four factors probably come into play here: Wideman was concussed, and therefore not responsible for his actions. For what it’s worth, the NHLPA was calling for no suspension whatsoever, arguing that Wideman “did not commit a ‘deliberate’ act of misconduct and therefore did not have the requisite ‘intent to injure’ to justify supplemental discipline.” Effectively, the argument was that Wideman wasn’t in control of his actions and therefore wasn’t responsible for them.

Bettman (and the league) wiggled around the “intent to injure” arguments by leaning on a particular aspect of Playing Rule 40.2: “For the purposes of this 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 essence, the league’s stance is: “Well, you cross-checked a ref, and since you should have known that could’ve injured the official, that’s enough to give you 20 games.”

(There’s also some stuff here about the NHLPA arguing that contact between players and officials happens all the time, which the NHL shrugged off because the Wideman/Henderson contact didn’t resemble a “hockey play” and occurred away from the flow of play.)

To wriggle around the “should have known” part of that stance, the NHLPA brought in a pair of concussion experts, who interviewed Wideman remotely (via FaceTime) during the All-Star Break while Wideman was vacationing in Arizona. After the interviews, they both provided the NHLPA with reports saying that Wideman’s cognitive functions (and judgment) were impaired, but when they testified before Bettman in the appeal, both of them specifically said that they couldn’t definitively say that was the case – contradicting the reports somewhat.

Was Wideman concussed? Yes. Could his capacity for decision-making be diminished? Yes. Can they say that it definitely was diminished (and therefore he wasn’t in control of his actions)? No.

In addition, there’s this gem.

Sure, they couldn’t conclude that Wideman was confused or had diminished capacity because they didn’t examine him right there and right then. But Calgary’s medical trainer did, and that party wasn’t consulted. Whoops.

The report also notes that despite just being hit, Wideman skated to the bench in a direct, upright manner, and slapped his stick on the ice to signal the bench that he was changing, indicating some level of situational awareness.

And finally, the microphone-dropper of a conclusion:

Sportsnet’s Elliotte Friedman noted in a series of tweets that the NHL’s appeal hearing was essentially a private court, so neither side would’ve been able to refuse providing whatever documentation either side wanted for the hearing – including text messages.

I’m actually kind of blown away how detailed all of this was, and I’ve written on Supreme Court decisions.

Circling back to Playing Rule 40, the NHL is basically saying that if an official is hit outside of a “hockey play” and you don’t sufficiently establish immediately that you were of diminished decision-making capacity because of an injury, you’re probably going to get the book thrown at you. That could result in a longer-term trend of teams being really careful with documenting potential concussions to protect their players (both from supplemental discipline and brain injuries), which might be the point considering the NHL is in the middle of a big lawsuit from ex-players regarding concussion awareness and care.

I’m not a lawyer, but after reading this and seeing how it’s written, it’s going to be pretty tough to definitively rebut in the next round of appeals.