NHL loses Dennis Wideman case vs. NHLPA, 10-game ban upheld

The NHL has lost its appeal of a neutral arbitrator’s ruling on Calgary Flames defenseman Dennis Wideman, as a New York district court judge decided that the the reduction of Wideman’s suspension from 20 games down to 10 was within the scope of hat arbitrator’s duties.

The 20-game suspension was handed down by the NHL after Wideman assaulted linesman Don Henderson in a January 27, 2016, game against the Nashville Predators. Wideman cross-checked Henderson, seemingly out of nowhere, concussing the linesman. The NHL decided that Wideman was in violation of Rule 40.2 which states that “any player who deliberately strikes an official and causes injury or who deliberately applies physical force in any manner against an official with intent to injure” is given an automatic 20-game suspension.

NHL Commissioner Gary Bettman upheld the ban after Wideman appealed. The NHLPA argued that Wideman himself had been concussed on a hit right before the incident. The NHL claimed that the NHLPA failed to establish if the Calgary Flames defenseman had suffered a concussion that caused the behavior, and thus it was a Category 1 offense in which a player “deliberately strikes an official.”

Wideman forfeited $564,516 from his $5.25 million paycheck for the year,

The Flames defenseman and the NHLPA appealed to a neutral arbitrator named James Oldham, as was their right under the Collective Bargaining Agreement since the suspension was larger than six games.

Oldham cut the suspension to 10 games. The NHL then sued the NHLPA in New York district court, and fired Oldham last summer.

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The NHL’s contention was that Oldham overstepped his stated duties in the CBA to rule on Bettman’s appeal. The CBA, they believed, established a framework where Oldham’s sole responsibility was examining Bettman’s decision and whether it was supported by the evidence. Oldham, meanwhile, reviewed evidence himself – including making an inference about Wideman’s mental state by watching game footage – and opted to cut the suspension in half.

“We believe that Arbitrator Oldham, in reaching his decision, exceeded his contractual authority by failing to properly apply the parties’ collectively bargained standard of review,” said the NHL when announcing the suit against the NHLPA.

The NHL took the Players Association to court to have the ruling reinstated. The NHLPA countered by asking that the case be tossed out altogether, or that the arbitrator’s ruling be upheld.

On March 15, New York Southern District Judge Alison J. Nathan ruled against the NHLPA’s first request, but ruled in favor of the second: Wideman’s suspension being reduced to 10 games.

Here’s the ruling:

Wideman by Anonymous NvUEFKRzLX on Scribd

Basically, the court found that it’s “at least arguable” that the neutral arbitrator “applied the standard of review bargained for in the CBA.”

In other words, the ruling was within the scope of his powers and responsibility, and that any NHL argument to the contrary was semantic and that the flaw wasn’t in the ruling but in how the CBA empowered the arbitrator.

From the ruling:

Even were this Court to agree that such language might be out of place in a traditional judicial review of an agency’s decision pursuant to a substantial evidence standard, in suggesting that the language constitutes a smoking gun here, the NHL ignores the fact that the Arbitrator had to balance analysis of new evidence with an ultimately deferential framework. See, e.g., Arb. Op. at 14 (“My opinion on the question of intent is supported by an important piece of new evidence, in the testimony of Stephen Walkom …. “). Rhetorical precision could not be expected in the context of a hybrid standard of review with no obvious antecedents and no clear application.

Two things here:

1 – Walkom, the NHL’s director of officiating, really screwed the proverbial pooch for the NHL here. He offered new testimony to the arbitrator that stated:

“My testimony is that he [Wideman] was upset, he’s skating to the bench, and he made a mistake, and he cross-checked the Linesman, and he knocked him to the ice with enough force to hurt him, even though he probably didn’t intentionally mean to hurt him.”

As the district court ruling noted, his allowed the arbitrator some wiggle room to make the case that Wideman didn’t have his wits about him.

2 – Where I’m sympathetic to the NHL is that the NHLPA did a poor job establishing Wideman’s health in the Bettman hearing, especially when the Flames did a piss-poor job chronicling the alleged concussion; and the fact that the arbitrator ignored a mountain of evidence against Wideman being concussed or “foggy” in that moment to essentially make a ruling based off a television.

The district court saw it differently:

The Arbitrator’s statement that interpretations of the collision “can and do differ” could be interpreted to suggest that the video evidence, like the testimony of the various doctors, was necessarily inconclusive, and thus could not be relied upon, on its own, as support for the Commissioner’s decision

(It’s here we note that, a year later, the NHL itself makes concussion diagnoses off television footage.)

This is a significant ‘L’ for the NHL. Not only was the NHLPA successful in getting a suspension overturned by a neutral arbitrator, but then it won again when the NHL sued them to get that ruling overturned.

What this does is set two precedents: One where players have now seen one of their own overturn a suspension by going one step above Bettman; but more importantly, they’ve now seen a player use an alleged concussion to reduce the punishment for a violent act. And that’s quite a standard to set.

The NHL released a statement on Wednesday night:

“We obviously disagree with the court’s decision today, but also recognize the very high judicial standard we needed to meet to disturb the arbitrator’s decision. While we believe we met that standard, we are prepared to turn the page and move on. We are hopeful that, if and when there is next an appeal proceeding involving supplementary discipline, the Neutral Discipline Arbitrator will properly apply the standard of review we and the NHLPA negotiated and agreed to in collective bargaining. That was clearly not done in this case.”

When asked for a statement, NHLPA spokesman Jonathan Weatherdon said: “We are pleased with the decision.”

Greg Wyshynski is a writer for Yahoo Sports. Contact him at puckdaddyblog@yahoo.com or find him on Twitter. His book, TAKE YOUR EYE OFF THE PUCK, is available on Amazon and wherever books are sold.

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