Sports and the Law
The purpose of this article is to answer a question that I’m sure is on the minds of a lot of NHL fans: does the league’s decision to reduce the suspension length of Austin Watson affect the suspension appeal of Tom Wilson? And if so, to what extent?
To answer that, we must look to other major conduct arbitration hearings that have been recently conducted in the NHL. Specifically, we will look at the arbitration decisions of Austin Watson, Nate Schmidt, and Dennis Wideman, all of whom faced 20 or more game suspensions at the time of their decisions.
Austin Watson-Nashville Predators
Austin Watson is a twenty-six-year-old forward with the Nashville Predators. He typically serves in the team’s bottom 6 and produces fairly well for his role.
On or about July 24, 2018, Watson was arrested and later convicted of misdemeanor domestic assault in Tennessee after getting into a confrontation with his girlfriend.1
After his plea, Watson was sentenced to three months of probation and ordered to complete a batterer’s program.2 He was later suspended for 27 games by the NHL for his conduct.
Per the NHL’s Collective Bargaining Agreement (“CBA”), whenever a player “is guilty of conduct…that is detrimental to or against the welfare of the league or the game of hockey,” the Commissioner of the NHL may “expel[]” or “suspend[]” him “for a definite or indefinite period [of time],” terminate his contract with his team, or impose a fine that doesn’t exceed the maximum amount allowable under the NHL CBA.3
A player is able to appeal the Commissioner’s suspension—as Watson did—for an outside determination and ruling on the NHL’s disciplinary action. The National Hockey League Players’ Association (“NHLPA”)—the union for every NHL player—can notify the league of its intention to appeal the decision on behalf of the player, and the matter is heard during arbitration with a single independent arbitrator. During the hearing, the arbitrator will review:
whether the Commissioner’s determination was supported by substantial evidence and not unreasonable based on:
- The facts and circumstances surrounding the conduct at issue;
- Whether the penalty was proportionate to the gravity of the offense; and
- The legitimate interest of both the Player and the League.4
In this instance, the arbitrator found for the Player’s Association and reduced Watson’s 27 game suspension to 18 games. In response, the NHL tweeted that this decision “substitute[d] the arbitrator’s judgment for that of the Commissioner.”5
Since Watson’s conviction, two other hockey players were given 20+ game suspensions by the NHL for their unrelated, non-criminal conduct: Nate Schmidt and Tom Wilson.
Nate Schmidt-Vegas Golden Knights
Nate Schmidt is a twenty-seven-year-old top-4 defenseman for the Vegas Golden Knights. In 2018, he played a major role in helping the Knights reach the Stanley Cup Final in their first ever season.
On September 2, 2018, Schmidt was suspended by the NHL for 20 games for violating the NHL’s performance enhancing drug provision. At the time of testing, Schmidt’s body contained a banned substance, the amount of which was “the equivalent of a pinch of salt in an Olympic-sized swimming pool.”6 Nevertheless, the NHL’s policy for first time offenders of performance enhancing drugs mandated that Schmidt be disciplined. Under the CBA, a first-time offender receives an automatic 20 game suspension.7
Schmidt, through the NHLPA, appealed his decision to an independent arbitrator. However, the arbitrator’s standard of review is much stricter for rulings regarding performance enhancing drugs than in arbitration hearings for off-ice and on-ice conduct.
The use of banned substances results in near strict liability, meaning any player found with a banned substance is automatically suspended unless he can show there was a testing or collection error, the player had previously petitioned the NHL for its consent in using the substance, or the player could not “reasonably ascertain[]” how the substance “entered his body.”8 After reviewing the facts of his case, Schmidt was given a 20-game suspension, since his argument detailing the amount the banned substance in his body did not fall into the exceptions that would enable him to escape liability after a positive test. Schmidt is still serving the suspension and will return to his team on November 18 against the Edmonton Oilers.
Tom Wilson-Washington Capitals
Tom Wilson, the twenty-four-year-old forward for the Washington Capitals, is a top 6 forward and typically plays on a line with Washington’s superstars Alex Ovechkin and Evgeny Kuznetsov.
Unlike Watson, Wilson is a more prominent member of his team’s core and he recently played a role in the Capitals Stanley Cup championship. Further unlike Watson and unlike Schmidt, Wilson’s suspension was not for any criminal conduct, any off-ice behavior, or for any use of banned substances.
Wilson was suspended 20 games after throwing a controversial hit on and injuring St. Louis Blues forward Samuel Blais during a game on October 3, 2018. This incident resulted in Wilson’s fourth suspension in fewer than 400 days—his three previous suspensions were for 2 preseason games, 4 regular season games, and 3 playoff games, respectively. Days later, the NHL responded with a massive 20 game suspension, one in which the majority of fans were even surprised as to its severity.
Through the NHLPA, Wilson appealed to an arbitrator, and that appeal is still pending. Because his actions occurred during an NHL sanctioned game, Wilson falls under a different provision of the NHL CBA (Article 18.2) that regulates on-ice conduct, rather than the sections used for Watson and Schmidt.
In determining a suspension for on-ice conduct for “the use of excessive and unnecessary force and reckless acts resulting in injury,” the NHL considers the offending player’s intent, the action that is under review, if the action is in violation of NHL rules, the force exerted by the offending player, any injury to an opposing player(s), any previous suspension history of the offending player, the time remaining in the game, the score of the game, or any other considerations that are appropriate in the context.9 Article 18.2 further notes: “[p]layers who repeatedly violate League Playing Rules will be more severely punished for each new violation.”10
Unlike the suspension for off-ice conduct, which can go directly to the arbitrator after the Commissioner’s decision to suspend, disciplinary action for on-ice conduct is determined by the NHL through review by the Department of Player Safety. Its decision can then be appealed to the Commissioner before the matter goes into arbitration. The Commissioner can consider the NHL Department of Player Safety’s ruling or any new evidence that the NHL Department of Safety failed to include or that came to light since its ruling.11
After the Commissioner’s decision, if the resulting suspension is still for more than 6 games, then the NHLPA can file with an independent arbitrator on the player’s behalf. This arbitrator can review the decisions of the Department of Player Safety, the Commissioner’s ruling, any new evidence that is presented, the length of the suspension, and whether the player violated any NHL rules.12 If the arbitrator determines that the decision was not in accordance with the evidence, the arbitrator gets to make the final determination as to the length of the suspension.
The Effect of Dennis Wideman’s Hearing on Wilson
In 2016, an arbitrator reduced the suspension of Calgary Flames defenseman Dennis Wideman from 20 games to 10 games. There, the arbitrator determined that Wideman (who was guilty of cross checking an NHL linesman after suffering a concussion only moments before his offending action) did not commit an “intentional act” in light of the circumstances. Thus, the ruling, which was decided under Article 18.2 and a mandatory 20 game suspension provision for having the “intent to injure” an official, nevertheless was in favor of the NHLPA.13 The arbitrator also noted the fact that Wideman had never been previously disciplined in his NHL career.14 Following this decision, the arbitrator who rendered it was dismissed by the NHL and removed from participating in future hockey arbitration hearings.15
In light of the arbitrators’ rulings in Wideman and Watson’s cases and the NHL’s response to these rulings, it seems unlikely that Tom Wilson’s suspension is reduced by the Commissioner during his hearing, which will take place on Thursday. As shown by Wideman, the NHL has a strong tendency to uphold Department of Player Safety rulings in extreme and notable suspensions, even when the facts of the case severely diminish the “intent” factor. Because of their strong policy against reducing suspensions for notable misconduct, the Commissioner will almost certainly continue that policy with Tom Wilson.
The matter will get interesting when it goes before an independent arbitrator. In two previous decisions, the arbitrators defied the NHL’s expectations and sided with the union. However, both decisions were not without consequence, as the NHL issued strong responses following each decision, even going as far as to permanently dismiss an arbitrator in one instance. Thus, the arbitrator in this hearing would be aware of the NHL’s previous responses and dismissal, which were predicated on the belief that the an arbitrator’s decision should not “exceed[] his contractual authority by failing to properly apply the parties’ collectively bargained standard of review.”16
Conclusion
Reducing Watson’s suspension probably does not generate any sympathy for Tom Wilson. Whether anyone believes it is unfair for someone suspended for serious criminal conduct to receive a shorter suspension than the continuously reckless player is irrelevant. Because both types of conduct are decided under different portions of the CBA, one suspension reduction for criminal behavior is not likely to influence the other for on-ice conduct, especially since the facts surrounding both players’ cases are so drastically different, and the League’s domestic violence policy is decided under the general criminal provision.
The much more pertinent question becomes: will the arbitrator side with the NHLPA again, especially when the facts are not more clearly in its favor? The arbitrator’s decision in Wideman’s appeal was based, in part, on the Wideman’s lack of intent after suffering a concussion and his lack of previous disciplinary sanctions. Here, Wilson had much more control over his own decisions while on the ice, has a lengthy history of controversial and suspendable hits, and is facing a much lower threshold of intent. Thus, there is ample distinguishable evidence between Wilson’s appeal and that of Wideman’s. Certainly, another decision in favor of the NHLPA would not only provoke another action from the NHL, but also determine the future of NHL disciplinary arbitration hearings. Perhaps with such a ruling, the League would advocate for raising the standard of review in the next CBA.
1 Natalie Neysa Alund, Predators Forward Austin Watson Pleads No Contest to Domestic Assault Charge, USA Today (Jul. 24, 2018), https://www.usatoday.com/story/sports/nhl/predators/2018/07/24/austin-watson-nashville-predators-domestic-assault-charge-no-contest/827256002/.
2 Associated Press, Predators Forward Austin Watson has 27-Game Suspension Reduced, Sportsnet (Oct. 11, 2018), https://www.sportsnet.ca/hockey/nhl/predators-forward-austin-watson-27-game-suspension-reduced/.
3 National Hockey League Collective Bargaining Agreement § 18-A.2 (2012) [hereinafter CBA].
4 CBA § 18-A.4.
5 NHL Public Relations (@PR_NHL), Twitter (Oct. 12, 2018, 10:17 AM) https://twitter.com/PR_NHL/status/1050797574326759424
6 Vegas Golden Knights, Statement from Nate Schmidt, NHL.com (Sep. 2, 2018), https://www.nhl.com/goldenknights/news/statement-from-nate-schmidt/c-299924644
7 CBA § 47.7(i).
8 CBA § 47.9
9 CBA § 18.2.
10 CBA § 18.2(c).
11 CBA § 18.12.
12 CBA § 18.3(c).
13 National Hockey League Players’ Ass’n v. National Hockey League, Appeal of Dennis Wideman Suspension, NHL.com at 5, 17 (2016) (Oldham, Arb.) http://www.nhl.com/nhl/en/v3/ext/pdfs/OldhamOpinion.pdf
14 Id.
- Jason Brough, Report: NHL Dismisses Neutral Arbitrator Who Reduced Wideman’s Suspension, NBC Sports (Jul. 20, 2016), https://nhl.nbcsports.com/2016/07/20/report-nhl-dismisses-neutral-arbitrator-who-reduced-widemans-suspension/ (confirming that the league and NHLPA must each agree to the selection of the individual arbitrator).
16 Id.
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