ANDREW CYR
<Sports Editor>
As a result of advancing medical research on the subject and a slew of high profile injuries (most notably Pittsburgh Penguins superstar Sidney Crosby), the issue of concussions in sports has received considerable attention in recent years. Studies focusing on the development of chronic traumatic encephalopathy (CTE) have shed light on just how serious the long-term consequences of repetitive head injuries can be.
There have been a variety of responses to this new understanding of the seriousness of brain injuries. Thousands of former NFL players are filing hundreds of class-action lawsuits against the league alleging that the NFL failed to adequately inform them of the long-term dangers of head injuries they suffered while playing. There have been calls for new equipment in both football and hockey that offer greater protection to the head, while removing the hard-shell coatings on shoulder and elbow pads that are often used as projectiles by defenders. Some critics have gone so far as to suggest that body contact be removed from minor hockey altogether.
At the professional level, many leagues have responded with rule changes in the name of player safety. The NFL has cracked down on illegal hits to the head and neck over the past three years, levying hundreds of thousands of dollars in fines and the occasional suspension for particularly vicious hits. International and Australian rugby league federations have decided to ban the dangerous “shoulder charge” tackle (a tackle in which the defender does not wrap up the attacker using their arms – which has been banned in rugby union for decades). In the NHL, Rule 48 was changed before the 2011-12 season to prohibit “hits resulting in contact with an opponent’s head where the head is targeted and the principal point of contact” with a particular emphasis on so-called “blindside” hits.
However, despite the NHL and other professional leagues’ growing knowledge of the dangers presented by repeated blows to the head, dropping one’s gloves and repeatedly and intentionally striking the opponent with forceful blows to the head is met with a simple 5-minute major penalty in the NHL and other North American professional hockey leagues. Rule 56 of the NHL rulebook, entitled “Fisticuffs,” governs fighting in hockey and holds that, “A minor (roughing), major or a major and a game misconduct, at the discretion of the Referee, shall be imposed on any player involved in fisticuffs.” In practice, players engaging in fights in an NHL hockey game are awarded with major penalties that allow them to skate back onto the ice 5 minutes later.
As you may have determined at this point, this article decries fighting in hockey, particularly the staged variety engaged in by “goons” or “enforcers.” Before I get into the reasons I don’t think fighting belongs in the game, I should make some disclosures. I have played hockey for 20 years, as well as playing football and rugby when I was in high school. I have engaged in hockey fights myself, and was once suspended by my own team for committing too many hitting from behind penalties in a single season. I understand that hockey is a violent game and I am not suggesting that the game needs to be revised into some kind of derivative of synchronized skating. Nor am I suggesting that punches should never be thrown in a hockey arena. In any aggressive sport, be it hockey, football, rugby, or baseball, occasionally emotions boil over and players come to blows. However, I do believe that the game has outgrown the brand of staged and scripted fighting in which NHL enforcers engage, and I consider it is a dangerous sideshow that detracts from the integrity and entertainment value of the game.
Beyond this, it is hypocritical of the NHL and other hockey leagues to suggest they are serious about player safety and make rule and equipment changes to address the concussion epidemic while failing to address the 230-pound gorilla in the room that is the staged fight and the role of the enforcer. As law students, we can appreciate how this kind of combat blurs the line between valuable elements of the sport and criminal assault. In recent years, Todd Bertuzzi and Marty McSorley have each faced both criminal and civil action for their on-ice actions. As we all learned in first year criminal law, consent is a valid defense to assault where the harm was trivial or where it is part of a socially valuable activity such as sports. As long as fighting is considered a legitimate aspect of hockey, it will likely be insulated from criminal prosecution. However, one can certainly question the consent offered by participants in a hockey fight. In most (though not all) instances the two participants agree to drop their gloves and go at it. However, it is certain that there is a significant degree of pressure on hockey players to be willing combatants and stand up for teammates, particularly when they are fulfilling the enforcer role on the hockey team. When one or both of the combatants feels obligated to participate in the fight in order to satisfy their teammates and coaches, does this truly constitute consent?
Those who argue for fighting in hockey suggest that it is a necessary element of the game and as much a part of the sport as skating, passing, and shooting. Presumably, those individuals have never seen college, European league, or international hockey where fighting is subject to significant sanctions and correspondingly rare. The best hockey game I have ever seen was the Canada-USA gold medal game during the 2010 Winter Olympics. At the end of the game, when Crosby scored the golden goal, how many Canadians were disappointed that there had not been a fight in the tournament? I know that it didn’t bother me.
Those same proponents may argue that, at least in the NHL context, fighting contributes to team success, and enforcers are fulfilling a valuable role by intimidating the other team and “pumping up” teammates. This myth is easily debunked simply by noting the fact that in the NHL playoffs, when the stakes are highest and the will to win intensifies, fighting has traditionally dropped precipitously and enforcers are often relegated to the press box. If this is not convincing, then consider the fact that, according to the New York Times, “on average, teams that won the regular-season title since 1980 finished the equivalent of 21st in fighting majors in a 30-team NHL. Teams that won the Stanley Cup in that period finished the equivalent of 20th in fighting majors.”
Finally, fighting advocates tend to believe that enforcers deter dirty or unsportsmanlike play by “policing” the aggressors on the other team. Beyond the fact that the kind of dirty play and stick-work that those who hold this belief fear has yet to manifest itself in the levels of hockey that ban fighting, one cannot help but question what two enforcers beating each other up has to do with the conduct of the other 36 players in the lineup. The argument that enforcers “protect” star players falls apart when one notes that enforcers almost never play alongside star players, as it would be a waste of the star players’ skill to offer them a linemate whose primary talent is fighting. In addition, in today’s NHL, many teams’ best players are also among their strongest and toughest. As a Winnipeg Jets fan, please forgive me for wondering from whom exactly Evander Kane and Dustin Byfuglien need protection?
In reality, the reason for fighting’s continued existence in hockey is historical. Fighting in hockey is an artifact, borrowed from its roots in the cold barns of impoverished rural Canada in the early 19th century. In those days, it was not uncommon for stick swinging and bench-clearing brawls to break out at hockey games, and deaths were not uncommon as a result of this chaotic style of play. This legacy has continued into today’s game in the form of enforcers and staged fighting.
It is unlikely that fighting is going to be removed from the game anytime soon, as it is overwhelmingly condoned and often celebrated by players, fans, and league administrators alike. In fact, fighting is more common this year compared to previous seasons (perhaps as a result of pent-up frustration over missing half the season due to the lockout).
Some say that it may take a tragedy for the NHL to seriously look at the way it handles fighting. However, this has already occurred. In the summer of 2011, three NHL enforcers died – Rick Rypien, Wade Belak, and Derek Boogaard. Rypien and Belak died of apparent suicides, while Boogard was killed by an accidental mixture of painkillers and alcohol. It is well known at this point that CTE, caused by repeated blows to the head, can lead to depression and substance abuse, and CTE was found on the brain of Boogaard and almost certainly a factor in the deaths of Rypien and Belak as well. However, these players’ deaths have done little to stem the tide of fighting in the NHL. At this point, the NHL has blood on its hands and has elected to keep throwing them.
Timothy Danson of Danson Becht LLP will be lecturing on Wednesday, March 27 at 12:30 in Room 2003 on recent developments in hockey violence and the law.