A DISCUSSION OF LAW AND JOURNALISM

School of Hard-Knocks: A Culture of Fighting in the NHL

By Meghan Lalonde

I grew up in a family of hockey players. My father played and my great great great uncle is in the Hockey Hall of Fame; he scored the first goal in the first-ever National Hockey League game in 1917 when he played for the Montreal Canadiens. Even more impressive, at least to my dad, he led the league in penalty minutes.

Fighting is just one of many penalties a player can be called for during a hockey game. When a player violates a rule he receives a penalty and is sent to the penalty box for between two to five minutes, depending on the severity of the rule that was broken. Fighting will get you the full five minutes in the “sin bin.” Heard of the band Five for Fighting? Now you understand the name.

In the wake of studies that suggest repeated head trauma (like concussions) may lead to a degenerative brain diseases known as chronic traumatic encephalopathy (C.T.E.), many contact sports have been criticized for their violent hits and frequent head injuries. The National Football League (NFL) responded by tightening rules governing hits to the head while increasing penalties and fines for players who violate the new rules. But the NHL fights on… for now.

According to a recent NHL Players’ Association poll, 98 per cent of all players think fighting is just a part of the game. But should it be?

In December, the New York Times published “Punched Out: The Life and Death of a Hockey Enforcer”, a three-part series by John Branch covering the career and death of Derek Boogaard, a former player for the New York Rangers and Minnesota Wild. He played as an “enforcer”, which is hockey slang for saying he spent a good share of his ice time beating up the other team and getting beat up himself. During his career, Derek “The Boogeyman” Boogaard had a hand in over 200 fights.

He was posthumously diagnosed with C.T.E at age 28 and sadly, he isn’t the only young enforcer to have recently died with the disease.

I had the opportunity to chat with Mr. Branch about the future of fighting in the NHL. Here’s what he said, and our take on it: 

JB: “I believe that fighting will eventually become virtually extinct at all levels of hockey. What I didn’t consider until this story ran was how that would happen. I believe it will not be because of the leadership of the NHL, trickling down (which is more or less what is happening with concussion awareness in football), but change will work from the bottom up. Youth and junior leagues will squeeze fighting out of the game with harsher penalties. It’s a child-safety issue. Eventually, the NHL may be the only league (other than a couple minor leagues that see fighting as the only way to draw a crowd) that still condones it. Should be an interesting few years.”

Recently, a group of former players sued the NFL for failing to protect or warn them of the risks associated with head injuries. There are no lawsuits from former hockey players yet but it’s probably only a matter of time.

Both leagues will probably argue, factually, that the repeated blows to the head did not cause the injuries alleged by the players, including the development of C.T.E. Further, they’ll likely argue that the players willingly joined the franchise, knew the risks of the sport, and played anyway; an argument known in law as assumption of risk.

In 1986, the New York Court of Appeals considered this defense when a professional horse jockey was injured during a race when he fell from his horse. He tried to recover against the racing association and owner of the horse, but the court refused, stating that when professional athletes participate in a sport they assume the risk of injuries associated with that sport.

The parameters of such risks are broad, indeed. Consider Chris Simon’s baseball-like hit to the head of Ryan Hollweg during a 2007 hockey game. Certainly no hockey player expects to be treated like a baseball sitting on a tee, primarily because it’s against the rules of the game. Still, because rules are made, as they say, to be broken, courts would find that players assumed the risks of – nearly all types – of injury.

It’s unclear what would happen if a player claims to have been injured as a result of the newly discovered ‘bounty’ system. On the New Orleans Saints (and potentially other teams, as well), a financial bonus was offered for opponents’ injuries. The more serious the injury, the bigger the bonus. Would a player on an opposing team not privy to this system be found to have assumed the risk of injury?

Not necessarily, but they might be more likely to succeed in a lawsuit against the other team or the league than if they’d been injured accidentally. But if players throughout the league knew that the system existed and continued to play, assumption of risk would likely rule the day.

In the NHL, since the death of Mr. Boogaard, there has been an increased awareness about repeated concussions leading to C.T.E. But this puts the league in a delicate position. The very injury being discussed is one that enforcers have to be willing to disregard in order to do their job.

JB: “The NHL, to its credit, seems to be taking the issue of concussions much more seriously than a few years ago. We’ve seen a lot of star players miss time because concussions have been diagnosed – concussions that, presumably, would not have been diagnosed before.

Until a couple of years ago, including throughout Derek’s [Boogaard’s] rise into the NHL, players were reluctant to admit to a concussion. It’s not an injury that trainers can see, so it seemed to be an admission of weakness. And young players are always afraid of being benched or cut – and certainly enforcers, who tend to be bottom-dwellers on the roster, anyway. A lot of that has changed, but I still wonder what percentage of all NHL concussions are actually diagnosed. And I wonder the same at all lower levels too.”

It’s a combination of toughness and aggression that makes football and hockey players a different breed of athlete, but there are signs that the culture, at least on the lower levels,  are changing. The newest edition of the popular football videogame Madden NFL 12, for instance, automatically removes players from a game if they have a concussion.

And fighting is now banned in all non-professional hockey leagues and carries with it severe penalties ranging from game misconducts to multiple-game suspensions.

The changes can’t come soon enough.

UPDATE, March 21, 2012:  The Wall Street Journal‘s story today about the Rangers and their pride in their fighting.  And why not? The article says “the Rangers are offering more evidence that fighting and physical play can help hockey teams win games.”

UPDATE:  September 23, 2012:  Derek Boogaard’s parents are suing the NHL Player’s Association for the $4.8 million he was scheduled to earn, and an additional $5 million in punitive damages.  According to the suit,  “It is irrational for this union to believe that a grievance should not be filed over the nonpayment of the balance to one of its members’ S.P.C. when the union is aware that a team or teams bears responsibility for the player’s death.”

Comments

7 Comments »

7 Responses

  1. Shelley says:

    Awesome article!! Fighting in hockey is going to get a T.K.O.!!

  2. Gary says:

    Nice article. I just started watching hockey and get bored quicklywith the fights. The game is much more exciting if the play doesn’t stop.

  3. Anonymous says:

    Bravo!!! A well written article. We teach our kids not to fight during sport competion; however, it is okay once you a professional athlete. Traumatic Brain Injuries could ruin these athletes lives. Newsflash, there is life after sports. Yes, football, hockey, and boxing are violent sports, but to injure someone deliberately? That I will never understand. Coaches that approve of it should be blackballed from sport. The same punishment should be given to players. Kids are the future athletes who will make a difference in playing a competitve spport without maiming their opponent.

  4. Letters to the Editor says:

    Published in NYTimes on this very subject (law and pro ball injuries)
    March 10

    To the Sports Editor:

    Re “N.F.L Inquiry Says Saints Set Bounty for Hits,” March 3: There is only one punishment that fits this crime, and I hope Commissioner Roger Goodell understands it: forfeiture of the Saints’ 2010 Super Bowl victory and banishment of the principals, certainly Gregg Williams, from professional football for life.

    Baseball’s Black Sox scandal pales in comparison. That was only about money; this was about blood.

    George F Gitlitz

    Sarasota, Fla.

    To the Sports Editor:

    Hiring someone to injure an individual is a crime whether it is committed by organized crime, a jealous spouse or a common thug.

    The definition of assault typically provides that a person is guilty if “with intent to cause physical injury, a person engages in conduct that causes physical injury.” Coaches and players who conspired to injure an opponent, then carried out the plan for money, are equally culpable.

    The fact that the crime occurs on the football field is not recognized as a defense in any state that I am aware of, and it should not provide protection from criminal prosecution.

    The N.F.L. has a responsibility to refer this case to local prosecutors as well as disciplining those who have engaged in this deplorable conduct.

    Robert C. Gottlieb

    New York

    To the Sports Editor:

    In commercials I have heard the slogan “more than a game.” Has it truly become more than a game to the point of warfare?

    As an N.F.L. fan, I am disgusted to know that the New Orleans Saints paid players to injure opponents. The history books should place an asterisk next to their Super Bowl victory because it was fueled with the intention of hurting the other team.

    In the Saints’ memorable N.F.C. championship game against Minnesota, they placed a bounty on Brett Favre and injured him. This advantage allowed them to escape with a narrow win.

    The Saints were able to inspire the city of New Orleans and all of America. This feel-good story has been tainted by this recent investigation.

    Asim Ahmad

    Storrs, Conn.

    To the Sports Editor:

    Re “Bounties Called ‘Inmates Governing Themselves,’ ” March 4: No athlete is immune from the immense pressure to perform and to push the envelope of conduct that is acceptable on the playing field.

    The current debate in the N.F.L. should be less about bounty hits and more about players who seemingly want to injure one another and coaches who encourage their athletes to cross the line.

    The money offered in the bounties is pocket change to multimillionaire athletes and does not serve as further motivation to hit harder and hurt opposing players. These bounties are merely a distraction from the larger picture. The league should focus on protecting players from egregious acts of violence.

    Jon Heshka

    Kamloops, British Columbia

    To the Sports Editor:

    Deliberate efforts to injure an opponent are not within the rules of football. This conspiracy should be investigated by law enforcement authorities, and, if the New Orleans Saints truly conspired to attack and cripple others, applicable criminal penalties should be enforced.

    A two- or three-game suspension is not the treatment that the law prescribes for premeditated aggravated assault.

    Daniel Tinkelman

    Brooklyn

  5. kim says:

    Greart article!! One of the reasons I do not watch hockey is because of the fights. If two people get into a fight on the street they would be arrested…why is it legal or at least acceptable when fights happen on the ice. It just doesn’t make sense!

  6. michelle says:

    can’t believe it’s been 35 years since movie Slap Shot came out, which showed hockey as it really is.

    An ode to the film here: http://gawker.com/5897534/slap-shot-the-only-honest-sports-movie