Off-Ice Misconduct in the NHL: Need for Independent Arbitrators

Passionate teammates, coaches, and fans are incensed at their favorite player when they turn the puck over in the defensive zone, but seemingly less so when they commit sexual assault. Thereby is the issue we face.

Allegations of bullying, racism, sexual assault, domestic abuse, and more have silently followed the National Hockey League for years.[1] While the NHL has previously planned a platform for whistleblowers of abuse and training programs,[2] existing rules in the Collective Bargaining Agreement (CBA) and Standard Player Contract (SPC) have to be uniformly applied for them to have a true impact on player actions and attitudes.

Current Issues

Logan Mailloux, a top NHL prospect, was charged with defamation and offensive photography in Sweden for an incident that occurred on November 7, 2020. Mailloux asked all 32 NHL teams not to draft him in the 2021 NHL Draft, stating that he did not feel that he demonstrated enough character or maturity to earn the privilege of being drafted.[3] Mailloux was nevertheless drafted 31st overall by the Montreal Canadiens in the 2021 NHL Entry Draft. One must question whether this decision undermines the gravity of the offensive behaviour, and demonstrates the prioritization of on-ice performance over morality. Although the Canadiens have stated that they do not wish to minimize Mailloux’s actions and will provide him with the necessary tools to learn,[4] their decision to draft Mailloux suggests to NHL players and prospects that their off-ice behaviour will result in little to no career-related consequences.

Otherwise, news has surfaced concerning the Chicago Blackhawks’ situation. An amendment to a lawsuit has been made stating that former video coach Bradley Aldrich forced a former player into sexual relations. Teammates engaged in “humiliating trash talking” to the player, including slur words, asking the player if he wanted to engage in oral sex for years at practices, with coaches present.[5]

The Applicable Rules

The SPC and CBA, among other sources, set out rules that govern players’ off-ice conduct.

SPC:

14. “The Club may also terminate this SPC upon written notice to the Player [...] if the Player shall at any time:

(a) fail, refuse, or neglect to obey the Club's rules governing training and conduct of Players, if such failure, refusal or neglect should constitute a material breach of this SPC [...]”[6].

CBA:

“18-A.2 Commissioner Authority to Impose Discipline for Off-Ice Conduct.

Whenever the Commissioner determines that a Player has violated a League Rule applicable to Players [...] or has been or is guilty of conduct (whether during or outside the playing season) that is detrimental to or against the welfare of the League or the game of hockey, he may discipline such Player in any or all of the following respects:

(a) by expelling or suspending such Player for a definite or indefinite period;

(b) by cancelling any SPC that such Player has with any Member Club; or

(c) by imposing a fine on the Player [...].[7]

18-A.3 sets out the Procedures for Commissioner Discipline for Off-Ice Conduct. The Procedures include (a) a league investigation and details on hearings (b-e).[8] Notably, the investigations occur internally between the NHL and its Players’ Association (NHLPA), where an Impartial Arbitrator is only consulted in the event of an appeal (18-A.4).[9]

Recommendations

Clearly, there are many rules and policies that are in place to prevent misconduct and punish players that engage therein. To little surprise, these are broad rules to allow for case-by-case interpretation. Therefore, the issue is not a lack of rules, but rather, in the application or interpretation of the meaning of said rules.

Adam Kierszenblat of The Hockey Writers suggests that the NHL needs to create a policy concerning sexual assault. Kierszenbalt suggests looking at policy created by the Major League Baseball for guidance.[10] Policy, training, and whistleblowers can ensure uniformity in prevention and disciplinary process between organizations. This idea can certainly help, but policy means nothing if it is not followed nor enforced.

Perhaps there is too much leniency in what is meant by “conduct that is detrimental to or against the welfare of the League or the game of hockey”. One must ask whether this leniency may be a result of the internal nature of the investigations and hearings.

The NHL’s support for many other noble causes, such as the You Can Play movement, Hockey is for Everyone, and creating the O’Ree Community Hero Award provides a glimmer of hope for the strides yet to be made concerning sexual, and other off-ice misconduct.

The NHL and NHLPA must continue with preventive approaches to misconduct. Equally, they ought to hold players, coaches, and organizations accountable to ensure the relevant provisions of the CBA and SPC have a preventive effect. Regardless, these individuals and entities are held to the highest standard on the ice; why should that be any different off the ice?

Don’t be mistaken, there are rules in place to punish players for forms of misconduct; they’re just not impacting teams and players in a way that sits well with the public’s moral compass. Therefore, if the NHL does not interpret and apply the rules of the CBA appropriately and change attitudes around the league, it is in the best interest of the league and its players to have decisions rendered by independent and impartial arbitrators at first instance, rather than through the league’s internal mechanism.

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[1]See generally Patrick Kane, Slava Voynov, Logan Mailloux. [2] Greg Wyshynski, (ESPN, 2019). NHL Plans Platform for Whistleblowers of Abuse, Training Program <espn.com/nhl/story/_/id/28262966/nhl-plans-platform-whistleblowers-abuse-training-program> [3] Frank Seravalli, (Daily Faceoff, July 20, 2021) <dailyfaceoff.com/nhl-draft-prospect-logan-mailloux-renounces-himself-from-2021-draft/>. [4] ibid [5] Ben Pope, (Chicago Sun Times, July 22, 2021) <chicago.suntimes.com/blackhawks/2021/7/22/22589500/blackhawks-sexual-assault-amended-lawsuits-bradley-aldrich-john-doe> [6] Collective Bargaining Agreement Between the National Hockey League and the National Hockey League Players’ Association, Exhibit 1 Standard Player Contract, article 14(a). [7] Collective Bargaining Agreement Between the National Hockey League and the National Hockey League Players’ Association, article 18-A.2. [8] ibid, article 18-A.3(b-e) [9] ibid, article 18-A.4 [10] Adam Kierszenblat, (The Hockey Writers, July 9, 2021) NHL Needs to Create a Sexual Assault Policy <thehockeywriters.com/nhl-sexual-assault-policy-needed/>