No doubt about it — the text message.
Wideman to a teammate on Feb. 2: “The only problem and the only reason I’m here is cause the stupid refs and stupid media.”
First of all, I don’t like it. Just like I don’t like judging the NHL on its emails released as part of discovery for the concussion lawsuit. I like to see the full chain for full context. We rush to judgment without the whole picture too often these days. I was disappointed to see Wideman’s text included.
So, why did he give it? Let’s go through the process.
The rules change when you move from a regular hearing to an appeal. The relevant section of the CBA is Section 18.12. It reads: “The Commissioner shall have the authority to consider any evidence relating to the incident even if such evidence was not available at the time of the initial Supplementary Discipline for On-Ice Conduct decision.”
Earlier Wednesday, I used the word subpoena. Two sources said there was (“Do you think Wideman willingly gave up his phone?” one said), with another disputing it. A lawyer set me straight, saying the rules are analogous to, but technically not, a subpoena. A subpoena is an instrument of the judiciary, which this is not.
But, here’s what it comes down to: Because this is an arbitration hearing — basically a private court — neither side can say no to this kind of a request. As long as the information isn’t privileged (such as talking to your lawyer or wife), both sides have to provide written communications from witnesses.
The NHLPA, for example, asked for Henderson’s texts messages, and got them.
Here’s what’s not spelled out: the penalty. By far the biggest question asked was, “Why did they give their phones?”
Here is a better question — what is the punishment if they don’t?
As I write this, no one has given me a straight answer, with one exception: the penalty for avoiding it can be severe. Wideman may be a Canadian playing in Canada, but this is based in the U.S. under American Labour Law. Because the CBA “allows the commissioner to consider any evidence,” it opens the door for serious problems if people refuse. At the very least, the NHL or NHLPA could be accused of unfair labour practices. That’s not a small problem.
I was directed to a website called privacyrights.org. It’s a California-based company that advises people on how to protect themselves. One of its sections discusses “BYOD” — an employee “bringing your own device.”
It reads: “Employees should never just assume that their personal content such as emails and applications will remain private.”
Theda Skocpol, a professor at Harvard University, wrote in The Boston Globe, “Nowadays, in the Deflategate world, we all had better be on guard. No more loose banter, especially in texts or e-mails or on the phone. Regular employees had better be careful what they say about their bosses in exchanges they think are private — and the higher-ups must be on notice that if their subordinates spread angry or mocking stories about them, someone like Commissioner Roger Goodell may decide those messages are the truth and demand that you hand over all of your communications, as well.”
Tom Brady tried a unique strategy in Deflategate — claiming the phone he used during the key period was “broken,” after the NFL claimed it was “destroyed.” He did submit two other phones and more than 5,000 emails. He also submitted a note from his wireless carrier saying the contents of his text messages were lost after three days. Initially, Brady was seen as not credible. The suspension was overturned, but the NFL is appealing. We’ll see where it goes.
Maybe Wideman should have claimed his phone was busted. At the very least, he should have been advised by someone to be careful what he wrote, because his own words could be used against him. There is the possibility this gets even uglier, with more texts being anonymously released.
James Oldham, the independent arbitrator who will make the final decisions, has the same power to demand information. The relevant passage reads: “(The arbitrator) shall have the authority to consider any evidence relating to the incident even if such evidence was not available at the time of the initial Supplementary Discipline for On-Ice Conduct decision (that’s Colin Campbell’s ruling) or at the time of the Commissioner’s decision in connection with the appeal.”
This is the first time in the new CBA we’re going to an independent arbitrator. The stakes are high for both the NHL and NHLPA. The CBA indicates a suspension can only be overturned if the length of the suspension imposed is not supported by “substantial evidence.” Based on the way Bettman shredded the doctors who testified on behalf of Wideman’s concussion defence, I wonder if the NHLPA changes its strategy by obtaining and introducing new expert medical evidence at the appeal.
Now, you tell me. Did Colin Campbell and Gary Bettman have reason to suspend Dennis Wideman for 20 games?