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Monday, December 05, 2011

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Posted by Administrators on December 5, 2011 at 03:25 PM in Article Spotlight, Culture, Current Affairs, Dan Markel, Sports, Torts | Permalink


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I've added an update at the bottom of the post with links to two new related issues: Jeff Yates' paper on reducing violence in sports through criminal prosecutions and the NYT's latest report: namely, that Boogaard's head was massively diseased, likely from all the concussions he suffered.

Posted by: Dan Markel | Dec 6, 2011 2:25:00 AM

I'm a both Montrealer and a Habs fan and I found those fans who called the cops on Chara absolutely outrageous. It was an internal league matter and, though discipline was not handed out by the Old Regime of Colin Campbell, it was settled. And I do agree that there ought to have been supplementary discipline, but there's little one can do.
However, in regards to the Pacioretty hit on Letang, this was the type of hit the League is trying to remove from the game. It was an east-west hit, which is as dangerous as a hit from behind, and I do believe that he (unfortunately) targeted Letang's head; I feel as though Pacioretty could have collided with Letang's shoulder just as easily as the head.
Finally, the Lucic hit on Miller is a different beast. There is no rule saying that goalies are always protected - except in the blue paint - and it was a race for the puck. Of course, Lucic finished his check a little too hard for my liking, but nothing in the incident warranted supplementary discipline.

Posted by: Charlie | Dec 5, 2011 11:44:05 PM

Professor Bartrum,

Many thanks for your response. First, I did not make the normative point that you are challenging -- whether should Pacioretty have been suspended for his hit on Letang. My comment, by contrast, was expressly that "enforcement of this new [head shots] rule has been inconsistent at best. Players do not know what Shanahan will find to be worthy of a suspension." More directly, if you are going to suspend Pacioretty for his hit, where Letang had more of an opportunity to avoid the hit than Versteeg, it seems to me that Joslin should have been suspended for his hit on Versteeg too -- but he wasn't. Hence, the "mess." The Lucic and Tootoo "hits" on Miller also demonstrate the confusion that exists.

Second, not every Montreal fan called the local police asking for an investigation into the Chara hit. There are Montreal fans, myself included, who thought the hit deserved a suspension, but that extra-league action was not appropriate. It should be noted that writers from the New York Times, the Atlantic, and Sports Illustrated, among other publications, expressed disappointment that the league did not suspend Chara. In other words, not everyone outside of Montreal shares the view that the hit was merely accidental.

Finally, the "Go Habs Go!" end to my post was meant to be light-hearted, as was the last sentence of the post. I did not intend to provoke such a strong reaction. Forgive me.

Posted by: Dawinder "Dave" S. Sidhu | Dec 5, 2011 10:59:36 PM


Pacioretty absolutely deserved suspension--that was a textbook example of the new rule--the only people who think otherwise finish their posts with Go Habs Go! Perhaps more to the point, these are exactly the people who wanted to go beyond Dan's suggestion of opening hockey fights up to tort liability, and actually CALLED THE POLICE to initiate a criminal investigation of what was clearly an unfortunate, but accidental hit during the course of a game.

Montreal fans are the very definition of "outcome oriented"... thankfully the police saw through the BS...

Posted by: Ian Bartrum | Dec 5, 2011 9:04:37 PM

If the NHL didn't want fighting, there wouldn't be any. There is no fighting in IIHF hockey, no fighting in NCAA hockey and limited fighting in some international elite leagues. As the league composition has changed, fighting has changed as well. Also, more players wear visors now, which has long been viewed as a cultural barrier to fighting (though that seems to be evolving). And the fighting that exists today - one on one combat until it ends or someone is in a compromised position - is much safer and less frequent than hockey used to be some years ago (the image most people have).

There is a serious insider-outsider mentality about hockey and fighting in hockey. People who play hockey or are culturally immersed in it "get" how fighting is justified, whether they agree with it or not, whereas outsiders just see violence & do not define fighting the same way or recognize how it fits within the context of other in-sport violence in hockey.

The arguments of consent or assumption of risk are strong because ALL sport is predicated on this fiction. It's a legal fiction that we use to prop up all sports, and the moral police makes its decision based on popularity & culture & politics, not based on actual data of safety. We have to believe that ALL people who play sport are capable of consenting to sports injuries, including the risk of traumatic brain injury, or we couldn't legally sustain many of our sport and recreation activities, including high school football. You can't seriously argue that the league will be sued or held accountable without understanding how this systematically would find the organizers of nearly every major sporting league & assocation liable for pressuring or mandating behaviors known to cause significant risk of harm and permanent disability.

What bothers me is that there is a significant difference between how the American media covers violence in hockey (with a focus on fighting over any other aspect of the game) disproportionately than violence in other sports, including the sacred American cow of the NFL. The more people who don't know anything about hockey other than what they hear from time to time & equate it with constant pugilism try to exert pressure, the more popularity it gives to people like Don Cherry and Mike Milbury, even though they are widely viewed among hockey insiders as old school relics. They are not immune from criticism (see the early season comments about Stu Grimson).

There is (very old) data that show that attendance increases when fighting increases in the USA, but not in Canada. But it is unclear if that still holds up and it is unclear to what extent that just reflects how hockey is predominantly marketed in America for its violence. And many of the hockey minor leagues that are bastions of fighting a la Slap Shot are located in locations that are not culturally hockey hotbeds. This suggests that the marketing and promotion of fighting in hockey may be connected to efforts to appeal specifically to American preferences in sport.

Change will come. As more medical evidence piles up, there will be changes that protect athletes in general in all sports - not just hockey. And while fighting can threaten player safety, the entire issue of traumatic brain injury in contact sports will loom larger over hockey as well as other contact sports (including football). But it's not going to come from outsiders, and it's likely not coming to come from Americans who have been tsk tsking the morality of hockey violence for decades without sufficient information or introspection.

Posted by: Shawn Crincoli | Dec 5, 2011 8:16:15 PM

This indeed has been a sad year for the NHL, with the loss of Boogaard, Belak, and Rypien. Their deaths justify a serious reexamination of the role of fighting in hockey. I acknowledge that fighting serves a function -- e.g., fights can help change momentum, avenge the targeting of more skilled players, or demonstrate that a team will affirmatively respond to the opposition's physical play. Whatever these benefits, the league has a responsibility to safeguard and promote the welfare of its players, including those who primarily engage in fights, even if these players fight for arguably legitimate reasons. It seems to me that the league will be reluctant, as a general matter, to give serious pause to the impact of fighting on "enforcers" and others so long as the value of fighting is emphasized by Cherry, Milbury, and others, and as long as it remains entrenched firmly in the Canadian-centric concept or culture of professional hockey.

True, there have been calls to improve the safety of players (e.g., suggestions for no-touch icing, for mandatory visors, and for protecting players from hits from behind). This is perhaps no more evident than the recent interest in quelling hits to the head. The problem, however, is that enforcement of this new rule has been inconsistent at best. Players do not know what Shanahan will find to be worthy of a suspension. Pacioretty was suspended for three games for hitting Letang (though Letang looked up and saw Pacioretty approaching), whereas Joslin was not suspended for hitting Versteeg (though Versteeg was could not avoid the quick forearm to the head). In other words, the enforcement of rules in hockey is, in my view, a mess.

My preliminary suggestion would be to make it more costly for players to fight and for coaches to encourage their players to fight -- a fight may carry with it a game misconduct, the instigator rule should be enforced more regularly and should result in a two-minute major penalty. I would also suggest that certain penalties (e.g., high sticking, elbowing, boarding, charging) result in a two-minute major, whereas other penalties (e.g., hooking, interference, too many men, delay of game) remain two-minute minor penalties. This would not only disincentivize questionable or dangerous play, but would result in more scoring, which we all ostensibly want.

At the same time, Shanny needs to fashion a consistent, reliable standard for what will or will not receive supplementary discipline when it comes to head shots. He may be incapable of doing so, and may need to be replaced by, oh I don't know, a law professor? ;)

Go Habs Go!

Posted by: Dawinder "Dave" S. Sidhu | Dec 5, 2011 7:16:22 PM

Fighting makes hockey safer, on balance. It's a tough sport, and without a chance to drop the gloves players will just use other means, most of them underhanded, to inflict punishment or exact revenge. Hockey players get hurt more from body checks than fights because you know you're in a fight and can protect yourself. The hits you never see coming. So if your goal is to make hockey safer (maybe that's not your goal), fighting's not your target, body checking is. (Women's hockey bans body checks, so there you go.)

Posted by: Jeff Standen | Dec 5, 2011 7:08:13 PM

I didn't argue for the newness or uniqueness of the hockey violence problem. I just think it's ripe. Maybe boxing and MMA will be next. They don't have the same success/audience with kids though, and paternalism is usually a good foundation for politicians and others to build a grandstand on...

Btw, Achoo!, your address is a false one and you've used it before. Do it again, and you'll be banned. It's not nice to write under DF's handle, especially when he's doing the work of running Prawfsfest! today...

Posted by: Dan Markel | Dec 5, 2011 5:25:26 PM

Hey Dan --

I understand -- and may well support -- your turn to the courts. And I'm pretty familiar with the research you site. There's plenty of winning in losing, so to speak. And there's loads of terrific stuff in this NYT series (unlike, say, David Segal's recent stuff).

But I guess I don't understand your quick dismissal of consent, nor do I understand why hockey fighting, brutal as it is, will seem an especially salient target for your moral entrepreneurs. Why not boxing? Or MMA? Don't get me wrong: I think the stories of Boogaard and Belak and Rypien are horrifying, and it'd be great not to repeat them. But they're not entirely new stories (see, e.g., Bob Probert), nor are they entirely unique ones in the world of sport.

Posted by: Achoo! | Dec 5, 2011 5:12:53 PM

that's why the moral entrepreneurs can use the courts to pressure the league/owners. Sometimes, the plaintiffs don't have to even win the litigation in order to effectuate the change--you can sometimes win even by losing in court.

Posted by: Dan Markel | Dec 5, 2011 5:04:44 PM

The moral entrepreneurs can push as hard as they want, but this is a money issue through and through. Didn't the article make clear that Boogaard's jersey was a top-seller in hockey-mad Minnesota? If fighting wasn't so pivotal to ticket sales and television deals, those moral entrepreneurs might have had a chance. As it is, though, they've got as much hope of removing fighting from hockey as they do of removing it from MMA.

Posted by: Achoo! | Dec 5, 2011 4:58:48 PM

@Jeff: there's a very clear signal as to when the senseless violence comes up: those ritualized squaring-offs when the gloves come off and the refs just stand back. Here's a draconian and fair solution:
Each time the gloves come off, the league should automatically throw the player out of the league and refer the matter to the local DA's office for review. The team would lose two goals off the score, and/or coaches would be assessed a 2,000$ donation to brain research charities for each time one of their players leaves the bench. Zero tolerance, personal and collective sanctions. The problem of the "squared-off fight" would be fixed within 3 days.
Admittedly, it would still leave problems for adjudicating body-checking, sticking, etc, but both personal and collective sanctions could be softer in that context (if necessary to add to already existing judgments and penalties inflicted already). P.S. Who are the wolverines ? :-)

Posted by: Dan Markel | Dec 5, 2011 4:53:31 PM

I only leafed through the article on the way to the crossword puzzle, but my impression was that Boogaard was being trained as a hockey goon from a young age, which is the outrageous thing about it. Also, I don't know much about how high level junior hockey (in the Detroit area, it would be a team like the Windsor Spitfires) deals with fighting. But I thought that in youth, prep, and collegiate hockey, fighting is verboten, and in particular, the designation of goons, a la Stu Grimson, Tony Twist, etc. was absolutely beyond the pale. I don't see the protection of youngsters playing hockey from "goonism" as being beyond the imposition of regulation.

It's tougher in the pros. Fighting is indeed part of the game, albeit under an odd set of tribal mores as to who fights whom and when, the justification often being that it's a violent game played under close quarters, and a good clean fight is better than chippy stick work. That being said, there's a significant history of prosecutions and civil suits involving hockey fights that go beyond a "hockey act." See Dave Forbes, Todd Bertuzzi, and others. (NB: the recent suspension of Ndamakong Suh arises from the fact that his stomping on the Packer lineman wasn't a "football act"; as opposed to an unnecessary roughness penalty which is part of the game, albeit a foul). The point is, however, that hockey, like football or boxing, is a violent game, whether the violence is within the rules or not. We're seeing all sorts of long term effects in football as well - Dave Duerson's recent suicide (and his desire to leave his brain to science) being a sad example. And one only need listen to Muhammad Ali to see the effect of his vaunted ability to take a punch. (Budd Schulberg wrote "The Harder They Fall" (1956) (with Humphrey Bogart and Rod Steiger) as an argument to ban boxing.)

So I don't think you'll get much of an argument about banning "senseless violence." The tougher issue is the consequence of "sensible violence." And I say that as a nerd who does follow the sports pages, and loves his Wolverines and Red Wings.

Posted by: Jeff Lipshaw | Dec 5, 2011 4:37:50 PM

Hockey just went through the most devastating summer in memory, losing not only Boogaard, but Wade Belak and Rick Rypien (who was Mark's nephew) as well. All these men were "enforcers" and though Boogaard may or may not have been depressed, Belak and Rypien were diagnosed with depression. They were good guys and the hockey community is still mourning.

However, one cannot confuse correlation with causation, which is implied in this post. It is difficult, let alone just, to place the blame on the National Hockey League, which does allow fighting (to quote Rodney Dangerfield, "I went to a fight the other night and a hockey game broke out"), for their deaths; it is a leap of faith that I am not willing to take.

For the last point, the NHL is really an "old boys club," where the brass has not changed in years or, if it has, they bring in former players (e.g. Brendan Shanahan and Stéphane Quintal to make videos regarding suspensions or lack thereof) to keep the status quo. And, as long as hockey commentators are of the ilk of Don Cherry and Mike Milbury, change will be slow.

Posted by: Charlie | Dec 5, 2011 4:05:18 PM

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