Ice Hockey GameSport can at times be so emotionally charged that there comes a time when suppressing the urge to pick a fight with your opponent can prove difficult (even in a World Cup Final).  Ice hockey is one of the few sports where players are allowed to settle their differences on the ice and the penalty which may or may not follow from the combat is usually a 5 minute cool-down on the bench.  As a spectator, it is nearly impossible to keep your calm when watching hockey players fight, whether you are at the pulsating stadium itself or sat instead at home in front of the television.

It is undeniable that the prospect of watching players fight is one of the elements that draws some spectators to the sport.  With famous names like Wayne Gretzky and Mario Lemieux, ice hockey has long been synonymous with strength, speed and brute power which are all part of the game. However, the highest scoring players are not usually the ones who transform the ice rink into a boxing ring.

Historically, fighting has long been a part of the 19th century Canadian sport and there are a number of theories why it has become part of the sport, a common one being that the relative lack of rules in the early history of hockey encouraged physical intimidation and control.  In ice hockey, fighting is unofficially governed by a complex system of unwritten rules with coaches and referees referring to the unwritten rules as “the Code”.

The Code is informally enforced by players called “goons”, otherwise known as “enforcers” whose job is to deter and respond to violent play by the opposition, specifically if the aggression is directed towards their star players or their goalie.  Enforcers don’t usually get as much ice time as other players and are not the highest paid players but they specialise in the act of fighting.  With the Code being an unofficial set of rules, the National Hockey League (the “NHL”) covers fighting on ice under Rule 46 of its Official Rules.  Rule 46 affords a large part of the decision-making to the referees:

The Referees are provided very wide latitude in the penalties with which they may impose under this rule. This is done intentionally to enable them to differentiate between the obvious degrees of responsibility of the participants either for starting the fighting or persisting in continuing the fighting. The discretion provided should be exercised realistically”.

In reality, this leaves the referees with the tricky task of identifying what is an accepted fight and what is a step too far.  When the fight breaks out and the gloves come flying off, referees are expected to spot and determine the intensity of the scuffle and make sure that it does not get out of hand. Controversially, in 2008 one such brawl resulted in criminal charges (later settled in 2014) when two NHL players, Todd Bertuzzi and Steve Moore, fought on the ice leaving Steve Moore with three fractured neck vertebrae, facial cuts, and a concussion, thus ending his professional career. Following the incident, criminal assault charges and a civil lawsuit were filed against Todd Bertuzzi. Thankfully, incidents of this severity are not frequent occurrences.  That in part is a result of the referees’ officiating, in particular their ability to identify which clashes need to be immediately stopped.

Nowadays, fights are much less frequent than in previous decades but an underlying theme has risen to the surface – as a result of the repeated fights and tackles, many players suffer from concussions which may, over the years, lead to serious long term brain injuries.  In the summer of 2011, Derek Boogaard, Rick Rypien and Leafe Wade Belak, three NHL enforcers passed away and they all seemed to share more in common than their fighting role in the game. The three players also shared many of the common symptoms linked to Chronic Traumatic Encephalopathy (“CTE”), a progressive degenerative disease of the brain, with reported side-effects such as depression, mood swings and dementia.

Following the tragic death of Derek Boogaard, in 2013 his family filed a wrongful death lawsuit against the NHL stating that the NHL is “Responsible for the physical trauma and brain damage that Boogaard sustained during six seasons as one of the league’s top enforcers, and for the addiction to prescription painkillers that mark his final two years”.

Shortly after this lawsuit was filed, ten former NHL players filed actions against the NHL in the District of Columbia stating that the NHL “knew or should have known about the lasting impact of head trauma and had a duty to inform and protect the players against the dangers of concussions” and they argued that the NHL “did not do enough to mitigate the risks associated with hits to the head”. The class action lawsuit has since been consolidated in the U.S. District Court of Minnesota and is reported to have been backed by over 100 former NHL players seeking unspecified damages.

Presently, the NHL’s Commissioner Gary Bettman does not acknowledge a link between ice hockey and CTE stating in July that:

“…the relationship between concussions and the asserted clinical symptoms of CTE remains unknown”.

Typical class action lawsuits usually take 2 to 3 years to be reviewed so it could be a while before this case is closed. The most recent developments took place in February when the NHL issued subpoena requests to two doctors at Boston University’s Chronic Traumatic Encephalopathy Center (the “Boston CTE Centre”), one of the largest brain repositories in the world dedicated to the study of CTE. The Boston CTE Centre, which is not a party to the law-suit, has examined the brains of more than 200 athletes for CTE. Their research identified that CTE has been diagnosed in all five professional hockey players whose brains were studied. These subpoena requests, if granted, would compel the Boston CTE Centre to produce the documents related to this research along with the files of all the individuals involved.  Rather unsurprisingly, the Boston CTE Centre’s response to the subpoenas was to say that providing such documents may jeopardise the medical privacy of the individuals and their families involved in the research who consented to the research on the basis of confidentiality:

“…in sum, the subpoena demands a step-by-step accounting of the nature of every researcher’s scientific inquiry into the study of chronic traumatic encephalopathy, complete with examples of findings involving individuals (or their families) who were given every expectation of privacy”.

These subpoena requests could delay the lawsuit further with the NHL planning to “probe the scientific basis for published conclusions” and “confirm the accuracy of published findings”. One may view this as an attempt to poke holes in the science of these findings in order to minimise the undesirable consequences of the Boston CTE Centre’s research on the sport.  There are more than passing similarities with the present case and the discovery by scientists in the 1950s of a link between smoking and lung cancer. In the latter case, tobacco companies requested to obtain the medical evidence in order to form their own research group and to attempt to discredit the scientific results.

By opening the dialogue on these issues, we may see the next generation of sportsmen and sportswomen becoming more aware of the potential risks of contact sport and taking the necessary precautions such as making sure to rest after they sustained concussions and requesting additional medical screenings before they go back to play.  This is not to say that the NHL has not implemented ways in which it can make the contact sport safer.  Last year, the league unveiled new concussion protocols that aim to identify concussions in the sport by employing a staff of certified athletic trainers to act as “spotters” for potential concussions. These spotters will be at games and at the NHL headquarters in New York watching live broadcasts remotely to spot signs of concussion and, where applicable, remove the players from the game with sanctions imposed on teams if they do not cooperate.

These new rules are a definite step in the right direction and in a sport where fighting is allowed and forms a historical part of the game, it is imperative for the sporting bodies to acknowledge the inherent risks involved in the relevant sport and provide support as well as educate current and future players appropriately.  As a result of former players speaking up about their experiences, the cat is now out of the bag and today’s athletes are more conscious of the health risks which come with some contact sports.  As a result, sports governing bodies are aware that they need to modernise their way of thinking and approaching these issues (something Sports Shorts has previously discussed here, here, here and here).  The more transparent governing bodies are in addressing the claims directly and showing new ways that potential health risks can be mitigated, the more that players (and supporters) will gain.