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Thursday, August 25, 2011

Guarding the Gladiators

This has been a sad and sobering week for professional sports.  And I say this not just because of the regrettable behavior of some fans attending NFL preseason games (see disturbing video of fights in the stands, on the concourse level, and in the parking lot).  Rather, Rick Rypien, a professional hockey player who most recently skated for the Vancouver Canucks, was laid to rest.  Rypien, who suffered from depression, committed suicide.  He was 27.  Rypien’s death follows the May passing of Derek Boogaard, a fellow professional hockey player who struggled with substance abuse and died – just one day after leaving rehab – from a lethal mix of alcohol and Oxycodone.  Boogaard was 28.   Last year, former NHL player Bob Probert collapsed and died at the age of 45.  Probert himself had legal issues related to drugs and alcohol. 

Rypien, Boogaard, and Probert were all “enforcers,” or players in the NHL whose sole or primary role is to fight on behalf of their team or teammates.  Fighting, in other words, is what enables them to hold a spot on a team and earn a living.  They "have" to fight, even though they may not personally enjoy fighting.  Though they can energize their team and excite fans, once the bouts are over, these players return to a rather isolated existence.  At the outset, I will admit that I am among those who believe fighting can serve a legitimate purpose in hockey contests (e.g., it can generate or change momentum, avenge a questionable play or the targeting of more skilled players, or intimidate the opposition).  Whatever the alleged or arguable merits of fighting in hockey, this entrenched element of hockey can no longer stand if serious brain injuries or mental health problems stem from it.  The three aforementioned deaths suggest that all those who assume the responsibilities of an “enforcer” and occupy this singular, specialized place on a hockey team deserve special attention, support, and consideration above and beyond any competitive or fan-based benefits of fighting. 

Preliminary reports suggest that Probert developed a degenerative brain condition that is generally brought upon by repeated concussions or trauma to the head.  Boogaard’s family has donated his brain for further study as to whether he, too, had this condition.  (Rypien’s family is apparently contemplating the same.)  What, if anything, does this have to do with the law?

Last week, a group of former NFL players who suffered concussions while playing in league games, filed suit against the NFL, claiming that they are entitled to “medical monitoring, compensation and financial recovery... as a result of the defendant’s carelessness, negligence, intentional misconduct, and concealment of information directly related to each Plaintiffs' injuries and losses.” (The complaint is available here).

Concussions are a growing problem in hockey, itself a contact sport like football.  The NHL, in response to concussions, has curbed hits from behind and body-checks from the "blindside" that appear to target another’s head.  These are encouraging developments from the perspectives of protecting the health and well-being of players and shielding the league from potential liability.  They are not close, however, to being sufficient in either respect. 

In this essay, Canadian sports law professor Jon Heshka points out that the NHL is trailing behind the NFL in guarding against brain injuries in that the former’s rules have a difficult-to-prove intent requirement for the blindside hit prohibition to be triggered, whereas the NFL does not, and the former can fine offending players a maximum of $2,500, compared to corresponding fines of $75,000 in the NFL.

In my view, the NHL is in disarray at a crossroads.  At the highest level, it is presided over by a commissioner with an, ahem, limited hockey background, who lacks the respect of the hockey cognoscenti, and who as a result of these two qualities undermines the credibility of the league’s overall activities.  Its enforcement arm has failed, as I’ve written, to sufficiently punish players for reckless actions that seriously jeopardized the health and safety of others, to deter such conduct, or to spread confidence among the fans that there is any sense to or consistency among the punishment decisions.  It now has lost three members of its fighting fraternity, which should at a minimum call for more robust mental health services, efforts to diminish any stigma attached to seeking out or obtaining these services, research into more effective helmets and other equipment, and adoption of additional rules that can protect players even if doing so sacrifices exciting moments in a game (e.g., no-touch icing).  The league response has been underwhelming, and has not matched in word or deed the seriousness of players' health and safety problems.

Andrew Cohen argued that it may take an on-ice death for the NHL to wake-up.  I hope, for the sake of the players and the league, that three premature off-ice deaths may compel the league's brass to take a hard look at its rules, their enforcement, and the resources available to its players, particularly the marginalized enforcers.  If their collective conscience in light of recent events is not sufficiently agitated to jolt the league into action, it sadly may take the threat of liability for things to change.

Posted by Dawinder "Dave" S. Sidhu on August 25, 2011 at 07:25 PM in Sports | Permalink


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Neumann! Thanks for your comment -- you bring up a point that is frequently made by those concerned about removing fighting from the NHL, namely that players will resort to "less honorable," "dirty" plays to achieve some of the purposes of fighting if fighting is no longer an option. There is evidence from European leagues in which fighting is banned, for example, that players will simply opt to engage in nasty stickwork (e.g., slashes, spears, etc.,) where they cannot fight.

On another note, I am pleased to read that Brendan Shanahan is now the NHL's new head disciplinarian. I hope he can not only issue more consistent and tolerable punishment decisions, but help ensure that those marginalized players who fight for a living have the resources and support needed to live healthy and reasonably happy lives.

Posted by: Dawinder "Dave" S. Sidhu | Aug 29, 2011 3:26:56 PM

@Mike Zimmer

and I went to a fight last week and a hockey game broke out! Take my wife, please. I got a million of 'em.

There is waaaaaaaaaaaaaaaaaaaaay more fighting in baseball than in hockey. The last bench clearing brawl in the NHL was 13 years ago. I see several a month in MLB just from watching sports center highlights. I have seen way more fighting in pickup baseball games among friends than I have in playing organized hockey, because the violence in baseball is sublimated.

The direct comparable is football: an inherently violent contact sport, with gladiators dressed in what amounts to armour. The NFL has addressed with some clear expectations. Throw a punch, take your helmet off in the field of play, expect to get ejected and fined. I think they are aided somewhat by the relatively brief cycle of play and stoppage- 10 seconds hitting and a minute standing around- but really we ought to expect that hockey players could respond to the same incentives and penalties.

Of course this does nothing to stop the eye gouging, cleat stomping cheap shots that are happening at the bottom of the pile in almost any football play. The argument in hockey has always been that the equivalent hockey things (boarding, spearing, headshots) are worse than two guys throwing a couple of punches. I would contend that this is true, but it does not legitimize fighting. I don't really see anything wrong with the idea that players ought to expect some consequence for fighting (like ejection) but if you try and "ban" fighting (in quotations because I really don't know what that means) you will generate much worse crap.

The NFL has some advantages. The extraordinary number of officials allows lots of eyes on all areas of the field, so you can legitimately offer to enforce a strict policy on open field violations like clotheslining or late hits or head to head contact. Players can have a high level of confidence that these will be punished, so it removes the need tot take things into their own hands. This still doesn't allow control of what happens in the bottom of a scrum but at least it is something.

Obviously hockey cannot put 9 officials on the ice, but they do have 4 now in the NHL and they are not fully using them all. My suggestion: increase the authority of linesmen to make calls. But first the NHL would have to decide - and clearly articulate - what offenses were the most egregious.

In this they face a serious challenge. I know very few NHL fans who
1. Believe that the NHL is punishing the worst fouls most aggressively.
2. Applies the rules consistently throughout the game or the season.

Since the lockout season, the NHL has increased enforcement of obstruction calls, the kind of annoying, skill impeding, but by no means dangerous offenses. It does create more opportunity to skill players to operate but also results in laughable absurd "are you freaking kidding me?" calls, all the time. And while I would concede that a player like Sid Crosby enjoys the extra room, I would bet if you asked, he would accept a bit more hooking and holding if the NHL did more to remove headshots.

Just as the NFL had a challenge in reducing head to head contact in that they were reversing the coaching on tackling technique that had existed for decades, hockey faces challenges of about faces. The NHL now calls incidental contact interference or hooking with great regularity, yet allows 30 foot run ups to late hits behind the play that would have been considered egregious boarding or charging calls a generation ago under the rubric of "finishing a check" or the asinine and contemptible newspeak "it was just a hockey play".

Call the stuff that takes away scoring chances or gets people hurt reliably and consistently and a lot of the motivation for the fighting will disappear.

Posted by: neumann103 | Aug 28, 2011 10:29:39 AM

The fan reaction to fighting is undoubtedly an aspect of why it is condoned, but that is not the whole story, and I have not argued that such fan reaction forms any part of why fighting can be "legitimate" in hockey. It is common for those opposing fighting to compare it to other sports or activities in which fighting is strictly prohibited. (e.g., "If a hockey player can punch someone on the ice, why can't I punch someone on the street?") One may ask instead whether the appropriate comparison should be against athletic events in which fighting is the sole object of those events, such as boxing, MMA, martial arts, etc. One may therefore ask, if punching someone in the face is okay in a boxing ring or octagon, why not on the street or in faculty meetings? That is, why is hockey any different than boxing or MMA -- at least in hockey fighting is a tangential, infrequent incident in the sport.

The notion that players fight simply and exclusively to excite fans is not supported by the facts. Under this view, fights would *only* be instigated by home teams to appease their fans, road teams to set up a more intense rivalry at home, or players interested in making TV viewers happy. I highly doubt any serious student of hockey would agree with this statement at all.

Posted by: Dawinder "Dave" S. Sidhu | Aug 25, 2011 11:18:02 PM

Come on. Fighting in hockey is just to make the fan's blood boil. If it is legitimate in hockey, why not in baseball, football, basketball, and faculty meetings?

Posted by: Mike Zimmer | Aug 25, 2011 9:50:52 PM

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