How the Dennis Wideman suspension case could set new precedents

Flames President Brian Burke joins Tim and Sid to express his frustration with the amount of time it took for a decision to come down on Dennis Wideman

The fact that Dennis Wideman’s 20-game suspension will soon become the first in NHL history appealed to a neutral arbitrator is far from the only new ground we’re breaking here.

How about commissioner Gary Bettman citing a text the Calgary Flames defenceman sent to a teammate as evidence that Wideman hadn’t accepted responsibility for hitting linesman Don Henderson? Or the fact that Flames president Brian Burke, a former league disciplinarian and longtime Bettman ally, blasted the appeals process for taking an “incomprehensible” amount of time to complete?

Or even that this whole incident revolves around a veteran player with no prior disciplinary history who claims to have had his judgment clouded after absorbing a big hit immediately before it occurred?

When you remove the emotion, what we are dealing with here is a case that carries a high potential for establishing precedent.

Precedent in the way the wheels of justice spin in the NHL. Precedent, potentially, in how the league treats indiscretions involving concussed players.

What stood out most about Bettman’s 22-page explanation of why he upheld the original 20-game suspension is how much of it focused on the concussion issue. Part of that was procedural – it was the primary argument forwarded by the NHL Players’ Association for why Wideman shouldn’t be suspended – but it was also done with an eye cast towards the future.

“In short, the record as a whole does not support the contention that Mr. Wideman’s actions were the result of confusion, a failure of ‘impulse control’ or a loss of balance,” wrote Bettman. “Moreover, to find on a record such as this one that the player was not responsible for the consequences of his actions would set a precedent that could be easily manipulated in the future in a way that would make the game more dangerous for all participants, including players.”

Both Wideman and Henderson suffered concussions during the Jan. 27 game at Scotiabank Saddledome – Wideman as a result of a hard legal hit from Nashville’s Miikka Salomaki; Henderson from the blindsided crosscheck he received from the Calgary player afterwards – and that’s a significant part of what the neutral arbitrator will be weighing.

The NHL rulebook specifically lays out punishments for incidents like this one, with rule 40.2 – “any player who deliberately strikes an official and causes injury” – calling for a 20-game ban. Bettman cited that as an “appropriate framework for the decision.”

In doing so, he put little weight in the testimony from NHLPA experts Paul Compher (neuropsychologist) and Jeffrey Kutcher (neurologist) that suggested Wideman’s unusual actions could be explained by his concussion. It amounts to the crux of the case, and the commissioner dismissed it in large part because both men only had discussions with Wideman over FaceTime days after the incident, rather than treating him directly.

“I find that the expert testimony presented on behalf of the player was speculative, at times contradictory, lacked support and was wholly insufficient to rebut the clear and convincing evidence provided by the video footage of the incident,” wrote Bettman.

Soon we will find out if a neutral arbitrator agrees.

This is the first time third party arbitration will be used in an on-ice discipline case even though it has been permitted since the current CBA was signed in 2013. While a time and location for the hearing have yet to be officially set, Sportsnet’s Nick Kyrpeos reported that Georgetown University law professor James Oldham would hear the case.

Time is of the essence, with Wideman having sat an out his eighth game when Calgary hosted Minnesota on Wednesday night. Burke was irked by the fact it took Bettman a week to make a ruling on the first appeal and didn’t hold back when asked about that fact during an appearance on “Tim & Sid.”

“We’ve been asking for a result for several days, saying ‘when’s this going to come down?’” Burke said. “Because now … they’ve virtually guaranteed that the player’s going to do 10 games no matter what because it’s going to take a couple days to get (the neutral arbitration hearing) put all together.

“So to take a week to rubber-stamp a decision that was made by the hockey operations department of the National Hockey League as games tick off for my player, that affect my team’s ability to win, that affect playoff races, that affect competitive balance, is incomprehensible to me.”

There is a lot to weigh in this case.

Plenty of evidence was considered in the commissioner’s appeal, including private text messages sent by Wideman and Henderson. Bettman quoted one the Calgary player sent a teammate following his initial hearing on Feb. 2 – “(t)he only problem and the only reason I’m here is cause the stupid refs and stupid media” – and questioned how sincere Wideman’s apologies to Henderson have been as a result.

Among the huge consequences this suspension carry for the 32-year-old defenceman is the fact he stands to lose more than $560,000 in salary, not to mention nearly a quarter of the season.

While the NHL is anxious to make a strong statement about the need to protect officials – “on-ice officials simply cannot be made the target of a player’s frustration or anger,” wrote Bettman – how it deals with concussions will be part of the long-term fallout as well.

Wideman wasn’t removed from the game in question or taken to a quiet area for evaluation by Calgary trainers even though a concussion spotter in the building noted that he was exhibiting symptoms. Henderson, similarly, remained on the ice for the 28-plus minutes left to play.

As part of Wednesday’s order Bettman noted that the Flames didn’t properly adhere to the league’s concussion protocol, but hasn’t yet made a ruling on any punishment for the organization. He says he’ll reserve judgment on that matter until a later date.