This website includes information about legal issues and legal developments.  Such materials are for informational purposes only, and is not intended as attorney advertising.  These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. Contacting via this website does not create an attorney–client privilege.

©2017 by The Hockey Blawg. Proudly created with Wix.com

Archive

Please reload

Tags

Please reload

NHL's lack of Domestic Violence Policy put to the test in Austin Watson situation

September 12, 2018

Nashville Predators forward Austin Watson pleaded no contest to a misdemeanor charge of domestic assault in July (via CBS Sports)

 

Of the four major North American professional sports leagues, the National Hockey League (“NHL”) is the only one without a domestic violence policy. Yes, you read that correctly. In a time where domestic violence awareness has become so important and visible, especially in professional sports, the National Football League (NFL), National Basketball Association (NBA), and Major League Baseball (MLB) have each implemented domestic violence policies for its athletes—but the NHL has refused even in the wake of some recent incidents.

 

Instead, any issues regarding domestic violence is handled on a case-by-case basis by NHL commissioner Gary Bettman and deputy commissioner Bill Daly. Just a few months after the Ray Rice incident in 2014, Bettman said that his league did not have a domestic violence problem and there was no need to implement a domestic violence policy:

 

“So I’m not sure for us there is any need for any code of conduct other than our players, who overwhelming conduct themselves magnificently off the ice—we deal with it on a case by case basis. I don’t think we need to formalize anything more. Our players know what’s right and wrong, and as I said, we have the mechanisms in place to hopefully not get to that point.” 

 

While it is true that the overwhelming majority of NHL players are model citizens—just like the men that play in the NFL, NBA, and MLB—this does not mean that the League, nor any professional sports league, is immune to domestic violence. In fact, since 2013, there have been a handful of domestic violence cases involving NHL players including Semyon Varlamov, Slava Voynov, and—most recently—Austin Watson. Also, NHLers such as Mike Ribeiro, Evander Kane, and Patrick Kane have been embroiled in sexual assault controversies in recent years.

 

As it currently stands, any allegations of domestic violence or any other wrongdoing against an NHL player is handled by the League via Article 18-A of the NHLPA’s Collective Bargaining Agreement, titled “Commissioner Discipline For Off-Ice Conduct.” Under this section, the commissioner is given broad and sole discretion in handling off-ice issues such as domestic violence. It is up to the commissioner to determine whether to investigate the off-ice conduct of a player and if a hearing should be held. There is no detailed protocol in evaluating such situations. Then the commissioner can hand down a penalty in form of fine, suspension, or termination of contract however he/she sees fit. In recent instances, the commissioner has mainly taken a “wait and see” approach, refusing to hand down any suspensions or other punishment.

 

The NHL’s lack of domestic violence policy will be put to the test very soon with the Austin Watson case. Luckily for Bettman, this incident occurred during the off-season, giving him more time and less pressure to make a decision. However, there is little way of knowing how the NHL and Bettman will handle this situation due to the inconsistent and unclear handling of past situations.

 

For example, Colorado Avalanche goaltender Semyon Varlamov was charged with third-degree assault and second-degree kidnapping of his girlfriend, Evgeniya Vavrinyuk, in 2013, but was never suspended by the NHL during the investigation. According to the police report, “Varlamov allegedly kicked her, stomped on her, dragged her around the house and threatened her. The woman had bruises consistent with a physical encounter.” However, Varlamov claimed that Ms. Vavrinyuk began punching him, causing marks on his upper body, chest, and neck, so he locked himself in a bedroom.

 

At the time Daly said the league was “monitoring the developing legal situation and [did] not intend to intervene in that process.”  The Russian goaltender was in between the pipes for the Avs just two days after his arrest. While the charges against Varlamov were eventually dropped, it was not a great public relations moment for the NHL.     

 

In comparison, Los Angeles Kings defenseman Slava Voynov was arrested in October 2014 on misdemeanor domestic violence charges and was immediately handed an indefinite suspension by the NHL. The Los Angeles district attorney’s office later charged Voynov with one felony count of corporal injury to a spouse with great bodily injury.  

 

According to the police report, Voynov “kicked and choked his wife, Marta Varlamova, then shoved her into a TV in the aftermath of an earlier dispute at a Halloween Party. The resulting injury above her eye required eight stitches to close and left the couple’s bedroom splattered with blood.” It was also noted that Ms. Varlamova had marks and scratches around her neck that “appeared to be consistent with her statement regarding the physical altercation that occurred.” The report further mentioned that Voynov said the victim’s injuries occurred when she hit the edge of the television while getting out of bed.       

 

Voynov later pleaded no contest to a lesser misdemeanor charge and was sentenced to 90 days in jail. After serving his jail time, he returned to Russia instead of going through deportation proceedings, prompting the Kings to terminate his contract. This July, his charges were expunged and he is now attempting to return to the NHL after spending the past few seasons in the Kontinental Hockey League.     

 

Clearly, the League took two different approaches to these situations—inactive and proactive. But, what will Bettman and Daily do in an “in between” scenario like the one Nashville Predators forward Austin Watson is facing?

 

Reportedly, Watson admitted to putting his hands on his girlfriend, Jennifer Guardino, causing red marks on her chest, while sitting in a car at a gas station with witnesses present.  The key witness to the altercation was so concerned about the altercation that they called the police, who eventually arrested Watson. The victim told the police that Watson had put his hands on her before. Watson later received three months probation following a no contest plea. The NHL launched their investigation shortly after.

 

While it is never fair to compare such heinous situations, it is reasonable to assess the Watson incident somewhere "in between" the Varalmov incident—one where there were no witnesses besides the couple, murkier facts, and the charges eventually dropped (Vavrinyuk later sued Varlamov in civil court, but she was ordered to pay him $126,608)—and the Voynov situation—where there were substantial physical injuries, witnesses to the events leading up to the altercation, and legal proceedings. Every situation has its own unique set of facts, and the Watson situation is no different. However, it is unclear how Bettman (and/or Daly) will evaluate this scenario, especially in light of the Varlamov and Voynov incidents.

 

Without any domestic violence policy in place it is difficult to determine what sort of punishment (if any) Watson will receive from the NHL. In the past, it has essentially been all or nothing. The NHL runs a great risk in this scenario because if Watson is punished (and if he is not, the NHL better prepare for a public relations nightmare) it would be essentially unprecedented. Without a proper policy in place, many might view the punishment as inconsistent and poorly explained. This is basically what happened to Roger Goodell when he originally suspended Ray Rice for two games. After public outcry, he admitted to getting the punishment wrong, which led to the creation of the NFL's policy. It would also not be surprising to see the NHLPA appeal any suspension on behalf of Watson if a suspension was imposed for a significant amount of time (see Section 18-A.4 of the CBA). 

 

It is important for all parties, including the public, that the process in determining punishments for these indiscretions is transparent. Because whether or not the parties or the public agree or disagree with the punishment, everyone will have to respect the fact that there was a clear process that led to the ultimate result. Even though these decisions are complex and difficult, it is important for the NHL to have a fair and transparent process.

 

It is also vital that such systems serve more than a punitive purpose, and includes measures to help the player and the victim. In real life, unlike sports, we want to have both sides "win" if possible. In high-profile domestic violence situations it has become overly commonplace for the victim to be forgotten (see Urban Meyer/Ohio State situation). This is especially apparent in professional sports where athletes are usually being paid millions of dollars and their significant others are financially dependent on their salaries. Sometimes the victims of domestic abuse feel that the potential loss of privacy, increased media attention, and financial and physical retaliation are not worth cooperating with an investigation. There are even occasions where the victim asks that their abuser not be charged or arrested, just like in the Voynov and Watson situations.

 

While the League has made an effort to educate its players on domestic violence, it is definitely behind the curve. The NHL and NHLPA need to come together and create a domestic violence policy that is not only transparent, but provides a framework to protect all parties involved. To begin creating such a policy, the NHL has to look no further than the Joint NBA/NBPA Policy on Domestic Violence, Sexual Assault, and Child Abuse. This policy is transparent, fair, and beneficial to all parties for a number of reasons:

 

  • It defines “domestic violence”;

  • It creates a “Policy Committee,” which is comprised of two NBA representatives, two NBA Players Association representatives, and three independent experts with experience in domestic violence. This committee makes all decisions by a majority vote, and implements and oversees all training and educational programs;

  • It creates a confidential hotline that can be used by players, their families, and other victims of domestic violence;

  • The NBA or NBPA can refer a player to the Committee for review for potential violations of the Policy, and once a player is referred an expert selected by the Committee will conduct an initial evaluation. Once that is complete, the Committee will develop a Treatment and Accountability Plan for the player;

  • While there is an ongoing investigation, the Commissioner can put the player on administrative leave with pay. Further, the Policy notes that administrative leave should only occur when “all relevant factors clearly establishes that it is reasonable to do so under the totality of the circumstances,” and then lists a non-exhaustive list of factors;

  • It states that a conclusive violation of the policy includes “an admission to, or conviction for, any offense that involves conduct that violates this Policy, whether after trial or upon a plea of guilty, as well as any plea of no contest or nolo contendere.” However, if the player is acquitted at trial, he is not subject to discipline under the Policy; and

  • In determining discipline, all of the Parties will meet to discuss the matter. Then, the Commissioner makes a determination on discipline while considering aggravating and mitigating factors, which are listed in the Policy.

 

The first NBA player to be investigated under this policy was Willie Reed, who was eventually suspended for six games last February.       

 

The NBA’s policy is not perfect, but it is a great start. Mainly, I am a big fan of the "Policy Committee" method and the listing of factors used in this process. While there might be some other things that could benefit an NHL policy, it is important to note that I do not think a “zero tolerance” approach should be implemented since such strict punishment could be counterintuitive. Domestic Violence advocates Cindy Southworth and Erin Matson have noted that a zero tolerance policy would not work because it places an incredible burden on the victim and puts them at more risk.

 

While we will find out Austin Watson’s punishment before September 13, we will likely have little clue as to how the NHL determined the discipline and what steps are being taken to help Watson and Ms. Guardino moving forward.

 

The NHL needs to do better on addressing this serious issue.

 

 

Please reload

Recent Posts

Please reload