Is the NHL Skating on Thin Ice Without a Domestic Violence Policy?

It’s October. The skates are sharpened, the ice is set, and the puck has dropped on a new hockey season.  But October is also domestic violence awareness month, so it is also a good time to talk about the fact the NHL is the only one of the “big four” leagues (NHL, NFL, NBA, and MLB) without a domestic violence policy. And after this past off-season, the question the NHL should be asking is: is that a problem?

A Troubling Off-Season

Over the past couple years, the sports world’s handling of domestic violence issues has become an important and headline grabbing topic.  While the NHL has, for the most part, stayed out of the headlines, two separate domestic violence incidents involving players came to a head this off-season in way that could necessitate broader action from the league.

In September, Nashville Predators forward Austin Watson was suspended 27-games for his involvement in a domestic violence incident this past off-season.  According to the Tennessean, Watson was arrested on June 16th after a witness alerted police to a possible domestic situation involving a driver and a passenger at a Tennessee gas station.  According to the arrest affidavit cited by the paper, the officer observed a female passenger, later identified as Watson’s girlfriend, “trying to ‘back away from being shoved away[.]’” Officers also stated they heard the woman saying “stop” and “trying to cover her face.” The driver, later identified as Watson, told officers he and his girlfriend were having an argument and admitted to pushing her; officers also noticed red marks on the woman’s chest.  The NHL suspended Watson immediately after his arrest.

In July, Watson pleaded no contest to a misdemeanor domestic assault charge and was sentenced to three months on probation.  As part of his probation he will also have to complete 26 weeks of a batterer intervention course, attend an inpatient substance abuse program, and maintain peaceful contact with his girlfriend.  If Watson abides by the terms of his probation, his record will be expunged; if he doesn’t, he risks up to one year in jail.

The Predators are apparently set to welcome Watson back when his 27-games are up—he was allowed to take part in the team’s pre-game introductions during their home-opener on Tuesday.

Watson’s arrest came on the heels of renewed talk about former Los Angeles Kings defenseman Slava Voynov returning to the NHL.  Voynov has been out of the League since 2014, when he was arrested and subsequently jailed for a brutal attack on his wife, Marta Varlamova.

The Athletic’s Katie Strang gave a compelling account of the allegations against Voynov in an article this past June, questioning why a team would add the former $4-million/year player to their roster.  Strang writes that Voynov and his wife, Marta Varlamova, began arguing at a Halloween party in October of 2014.  After going outside, Voynov “punched [Varlamova] in the left jaw with a closed fist.” Things intensified when the couple returned home.  Strang describes how court documents filed on behalf of the prosecution tell how Voynov “wrapped both of his hands around Ms. Varlamova’s neck and began to squeeze, making it difficult for her to breathe.”  He then “kicked her five or six times all over her body” before pushing her into the bottom corner of a television, causing a head wound that needed eight sutures to close.  Varlamova’s screams were, reportedly, so loud and ongoing that a neighbor called 911.  Strang also reports Varlamova’s seven-year-old daughter was home at the time of the reported attack.  Further, according to The Athletic, Varlamova told police officers and nurses that this was not the first time her husband had attacked her, and he was “very aggressive.”

Voynov was arrested and charged with one count of felony corporal injury against a spouse. Within hours of the arrest, the NHL suspended Voynov indefinitely pending a formal investigation by the League.

In July of 2015, Voynov pleaded no contest to misdemeanor corporal injury against a spouse and was sentenced to 90-days in jail and three years on probation. The Kings subsequently terminated Voynov’s $25 million contract and placed him on the voluntarily retired list (because of this, the Kings still retain his rights). In lieu of going through formal deportation proceedings, Voynov “self-deported” to Russia and continued his professional career in the KHL. After all this, any future in the NHL looked doubtful.

This past July, however, things changed.  When Voynov’s probation expired, a Los Angeles judge granted a dismissal of his conviction. While Voynov was not at the hearing, his attorney argued that Voynov completed all the requirements of his probation, including twice the required amount of community service.  With his record now expunged, Voynov could, conceivably, try and return to the NHL.  And guess what? He wants to. The NHL confirmed Voynov met with Commissioner Bettman this past spring; and in September, USA Today reported that the League had started a formal investigation to determine if Voynov should be allowed back into the NHL.

How the NHL Handles Domestic Violence

“One Eastern Conference GM said: ‘The league handles these things, and they do a good job. It probably would be good to have some guidelines on paper, but as long as they are consistent, I haven’t heard of anyone who has a problem with it.’” [via espn.com]

Rumors of Voynov’s possible return to the NHL were immediately met with op-eds imploring the NHL to bar the Russian-national’s return.

It’s tough to argue with that sentiment from a moral and “athlete as role models” perspective.  But, from a legal point of view, unilateral bans for off-field (or ice) conduct are hard to uphold.  The NFL tried to impose an indefinite ban on Ray Rice amid public outcry over Rice’s assault on his then-fiancée.  That suspension was appealed by Rice and overturned by an arbitrator who ruled that NFL Commissioner Roger Goodell had abused his discretion in imposing the suspension and had failed to act with the requisite fairness and consistency.

That’s the problem the NHL could face. Like the NFL (and all major sports leagues), the NHL is a private association.  As a private association, the NHL is not constrained by the bounds of due process.  And while this grants the League some latitude in how it handles these situations, courts can intervene if a private association acts in a manner that: 1) violates its own rules; is fraudulent or illegal; or 3) is arbitrary and capricious.

Right now, the NHL handles domestic violence offences on a case-by-case basis with Commissioner Gary Bettman and Deputy Commissioner Bill Daly making the final decision on punishment (if any).  This system is rooted in Article 18-A of the NHL CBA, which authorizes the Commissioner to discipline a player who “has violated a League rule applicable to Players…or has been 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[.]” This is incredibly broad. And the punishments allowed under this provision are similarly broad; they include: expulsion from the League or suspension for a definite or indefinite period, cancelling a player’s contract, or a fine.  While the NHL is given broad latitude in doling out punishments, to avoid allegations of acting arbitrarily and capriciously, it should attempt to maintain some consistency with sanctions for similar offenses.

Since the NFL’s botched handling of the Ray Rice situation, the NHL has, seemingly, toughened its stance on domestic violence.  Compare the NHL’s immediate suspensions of Voynov and Watson with their “hands-off” handling of Semyon Varlamov.

In October of 2013 (before Ray Rice), the former Colorado Avalanche goaltender was arrested and charged with kidnapping and assault following an alleged incident with his then-girlfriend. According to the police report, Varlamov “kicked [the woman], stomped on her, dragged her around the house, and threatened her.”  Unlike Voynov and Watson, Varlamov was not immediately suspended by the League or the Avalanche. Instead, he was allowed to keep playing and travelling with his team while his legal matter played out.  Ultimately, all charges against Varlamov were dropped and the goalie won a civil suit filed by his accuser.

The NHL has all but admitted that the Ray Rice situation influenced their handling of Voynov. In an email to The Hockey News, sent following Voynov’s immediate suspension, Deputy Commissioner Bill Daly attempted to answer why Voynov and Varlamov were treated differently, writing, “I think the landscape has changed for all of us over the past six months[.]”  Daly was also quick to add that there were other factors that weighed into the League’s decision to suspend Voynov and not Varlamov; but, he told The Hockey News, he could not get into the specifics.

This paints a picture of a League that was content with stepping back from off the ice issues suddenly having to grapple with increased public scrutiny on its players’ behavior—and on its own reaction to that behavior.

The question the NHL needs to ask itself now is whether the punishment for Watson sets a precedent for the League’s handling of future domestic violence incidents—especially as Voynov may be eyeing a return to the NHL. Can the League that has already laid out a pathway for one player to return from a domestic violence incident really bar another for the same thing?

The NHL could consider that both Voynov and Watson ended up pleading no contest to misdemeanor domestic violence charges; Voynov served time in jail and, according to the court, completed his probation in a satisfactory manner. Watson was sentenced to probation—and will still be on probation—when he’s eligible to return in December.  But it could also consider that the reported injuries to Voynov’s wife resulted in her needing immediate medical attention while Watson’s actions reportedly did not.

How Other Leagues Handle Domestic Violence

While the NHL hasn’t set out a specific domestic violence policy, the three other major sports leagues have.  The NFL was the first.  In September 2014, in the wake of the Ray Rice incident, the NFL rolled out its policy in a letter to owners.  NFL Commissioner Roger Goodell announced that going forward, a first domestic violence offense would warrant a six-game suspension, and a second offense would be a lifetime ban.  According to ESPN, the six-game ban is just a baseline and the number of games can be raised or lowered based on the situation.   Additionally, a player facing a lifetime ban will be given an outline on how to petition for reinstatement.  The NFL’s approach is set forth in its Personal Conduct Policy, which was enacted pursuant to the NFL Constitution that grants the Commissioner wide authority to punish “conduct detrimental to the integrity of and public confidence in the NFL[.]”

Major League Baseball released new guidelines for domestic violence in 2015.  Under its policy—agreed to by both the League and the players’ union–a player accused of domestic violence, sexual assault, or child abuse can be placed on administrative leave for up to seven days while the allegations are investigated. From there, the Commissioner can decide how long to punish a player, with no minimum or maximum suspension. Players have the right to appeal any decision before an arbitration panel.

The NBA adopted its domestic violence policy in 2016 as part of the League’s most recent collective bargaining agreement. Under its CBA, the NBA can investigate and punish players involved in domestic violence situations.  While an investigation is pending, the NBA can place a player on administrative leave with pay for a “reasonable” period of time However, under the CBA, this should not be “routinely applied” and should only be used when relevant factors (including but not limited to: the severity of the incident, the credibility of information, and the player’s character and reputation in the League) establish that it is “reasonable” to place the player on leave.  Players may challenge placement on administrative leave.  The NBA CBA also specifies that an admission, a conviction, a guilty plea, or a no contest plea will “conclusively establish” a violation of the League’s domestic violence policy. This can result in discipline ranging from a fine to dismissal from the League. A finding of “just cause” in an NBA investigation can also result in this same discipline.

Policy is not just about the punishment

The punishment side of a domestic violence policy generates headlines.  Moreover, it’s important to note that a well-crafted policy can help a potentially violent player get treatment and, most critically, help victims get much needed support.  The NBA’s policy requires any player who’s been found in violation of the League’s policy or criminally convicted of a domestic violence offence to be given a “Treatment and Accountability Plan” determined by the policy committee.  This can require a player to attend therapy or counselling sessions.

The MLB policy also establishes a “policy board” that can develop a treatment plan for players.  Baseball’s policy board is composed of domestic violence experts as well as representatives from the players’ union and the Commissioner’s Office. MLB treatment plans can require psychological evaluations, counselling sessions, relocating from homes shared with partners, and relinquishing of all weapons.

What Should the NHL do?

The NHL has had four years to watch and see how domestic violence policies in the other four major professional sports leagues played out.  After a few years of relative calm, the NHL is in a place where it may have to make a defining decision about its stance on domestic violence.  It seems unlikely, given the League’s handling of Austin Watson and legal constraints upon arbitrary punishment, that the NHL can unilaterally ban Voynov from returning.  Of course, there are still considerable questions surrounding Voynov’s return, including his immigration status and whether or not a team would even be willing to sign him (think of Ray Rice in the NFL).  This may also be a moot point if Voynov should decide that he’s not interested in returning to the League.  But even if that’s the case, the NHL needs to ask itself how long it wants to be the only major sports league without a domestic violence policy.  Although domestic violence incidents have been rare in the NHL, they garner considerable headlines when they occur.  The NHL has an opportunity now to be proactive, to establish a system that both holds players accountable and offers support for victims.  It will be interesting to see if—and how—they choose to decide.

Picture Courtesy: Mark Boster / Los Angeles Times

 

 

 

 

 

 

 

 

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