Yesterday the Southern District of New York confirmed a neutral arbitrator’s decision to reduce Dennis Wideman’s suspension from 20 games to 10 games. Wideman incurred the suspension after striking a referee during a game late last season (video link). Unless the NHL decides to appeal—which is unlikely given the ruling—this ends the Wideman disciplinary issue between the NHL and NHLPA.
The controversy centered on whether Rule 40.2 (intent to injure an official) or 40.3 (no intent to injure an official) applies. The NHL initially suspended Wideman 20 games under Rule 40.2. Rule 40.2 states that any player who deliberately strikes an official and causes injury, or deliberately applies physical force with intent to injure shall be suspended no less than 20 games. The rule defines intent to injure as any physical force that a player knew or should have known could reasonably be expected to cause injury. The NHLPA argued that 40.3 applied instead, which carries a lesser minimum suspension of 10 games. The NHLPA argued that Wideman’s concussion sustained just prior to hitting the official made him unable to comprehend the situation enough to satisfy intent to injure.
Under the CBA, the NHLPA can first appeal to Commissioner Gary Bettman. If the NHLPA is dissatisfied with the Commissioner’s decision, it could appeal to a neutral arbitrator. The arbitrator would not conduct a new hearing, but rather review Bettman’s decision, and hear new evidence not presented at the initial hearings. Bettman confirmed the NHL’s 20 game suspension, so the NHLPA appealed to the neutral arbitrator.
The neutral arbitrator ruled that the evidence did not support the NHL’s decision that Rule 40.2 applied. Rather, he found that 40.3 applied, and reduced Wideman’s suspension to 10 games.
The arbitrator’s decision wrestled with the CBA’s internal inconsistencies. The CBA defines the standard of review for the arbitrator, but those standards contradict themselves. First, the CBA says that the arbitrator must determine whether the NHL’s decision was supported by substantial evidence. Second, the CBA authorizes the arbitrator to consider new evidence not presented to the Commissioner. The introduction of new evidence seems to contradict reviewing whether the Commissioner’s decision was supported by the previous evidence.
The arbitrator resolved this by stating that the standard of review is whether the Commissioner’s decision is supported by the all the evidence, including the new evidence not previously available. If the arbitrator determines that the decision is not supported by the evidence, then the arbitrator has full remedial authority to issue another ruling.
Using this standard, the Arbitrator ruled that there was little to no evidence supporting Bettman’s decision that Wideman intended to injure the referee. He based this on two findings. First, that there was “not even a scintilla of evidence” that Wideman—with an excellent disciplinary record—would intentionally strike the referee. Second, that because Wideman was concussed (both parties agreed) he could not have anticipated that his applied force would cause the referee to fall and bang his head. The second finding was based on the arbitrator’s finding that the frame-by-frame video replay showed Wideman’s pushing the referee with his hand rather than crosschecking him.
The NHL disagreed with the arbitrator’s decision, fired the arbitrator, and filed a complaint in Federal Court to vacate the decision. The NHLPA responded by asking the Court to either dismiss the complaint or confirm the decision.
The Court granted the NHLPA’s second request and confirmed the arbitrator’s decision. The Court stated that it was bound by a very limited standard of review. It must confirm the arbitrator’s decision as long as the arbitrator was “arguably acting within the scope of his authority” and the award “draws its essence from the CBA.” Simply put, the Court must defer to the arbitrator unless no reasonable argument exists in the CBA to support his decision. Mere disagreement—that is, if the Court might have decided the issue another way—is not enough.
Bound to this standard, the Court found that the CBA was internally inconsistent, and the arbitrator worked within the CBA to rectify the contradictions. The arbitrator’s decision was reasonably based on the terms in the CBA, and that was enough for the Court.