Dennis Wideman and the ‘concussion defense’ slippery slope

When the NHL gets litigious, it’s usually because it’s desperately trying to maintain the status quo against an interloper that threatens it.

Like when Jim Balsillie attempted to use bankruptcy court to circumvent NHL rules and obtain ownership of the Phoenix Coyotes. The NHL fought him in court, and ultimately reinforced its right to determine the owners of its teams and the locations of its franchises.

And like when the NHL filed suit against the NHLPA after arbitrator James Oldham reduced the suspension of Calgary Flames defenseman Dennis Wideman from 20 games down to 10.

First, the NHL is trying to defend Commissioner Gary Bettman’s decision to suspend Wideman 20 games for attacking linesman Don Henderson in January, because he’s never wrong. Then it’s trying to show that, despite the spirit of the CBA, the neutral arbitrator isn’t the final word on these matters, which could chill other players from going this direction.

But when you look at Oldham’s ruling, it’s also about trying to stop “the concussion defense” from being a valid one in matters of supplemental discipline.

To reset it: Bettman’s ruling concluded that the NHLPA hadn’t established if Wideman had a concussion at the time. Its two doctors evaluated him remotely, via Facetime, and after he had already been suspended indefinitely. The trainer’s notes from that Jan. 27 game also didn’t make mention of any concussion or concussion symptoms. In fact, they state he “cleared in a few minutes” after returning to the bench. Logically, Bettman rules that the NHLPA hadn’t established what Wideman’s mental state was at the time.

Oldham, however, ruled that Wideman was in a “concussed state” and hence didn’t have his wits about him when he got physical with Henderson. Part of this was through new testimony, and part of this was his own evaluation of the video. Thus, the 20-game suspension for an “intentional action” wasn’t the correct call, according to the arbitrator. And thus, the NHL filed a lawsuit.

So you could see where the NHL wouldn’t exactly be pleased with this precedent, what with the floodgates set to open on players claiming concussions temporarily caused them to act violently and using that as a way to reduce potential suspensions. It would undercut the Department of Player Safety is a significant way, and gets it tangled on the mess of concussion protocols the League deals with annually.

But there’s another aspect to the concussion defense that’s worth exploring.

Adrienne Lawrence is an attorney who covers legal issues for ESPN.com. Her piece this week deals with the potential fallout from that defense:

Wideman’s defense hinged on the notion that there is a cause-and-effect relationship between concussions and craze — that head trauma converts players from being rational beings with self-restraint into lethal animals without self-control. If that were the case, concussed players could have to prove that they are not ticking time bombs post-impact.

The concussed could have to persuade their teams that they wouldn’t need to be quarantined, sway their spouses to believe it’s safe for them to be alone with their children, or even convince health insurers that they wouldn’t pose a danger to themselves or others such that higher premiums would be necessary.

Again, this is some slippery-slope speculative stuff, but it does make you wonder if players could simply argue “oh, sorry, I momentarily slipped into being a violent maniac, won’t happen again” in a discipline hearing and have that be that. It’s almost as if Lawrence is making the case that a suspension would be replaced with a “wait and see” period to ensure that the concussed player doesn’t lash out again, at players or at family members.

Just something to consider as the NHL battles this. After all, as the League has taught us in fighting the Wideman case, just because something seems like the last step doesn’t mean it is.
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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.