NHL has a duty to protect: could fisticuffs on the ice lead to handcuffs?

Employers have a duty to protect: could fisticuffs in the NHL lead to “handicuffs”?

Those who oppose fighting tend to do so on moral and civil grounds or legal grounds. Like matters of taste, levels of civility and morality are much more variable than I had realized, thus difficult to argue without sounding righteous or patronizing.

Criminal law and employment law are easier to tackle.

I’ve been asked why police aren’t waiting after the game to charge fighters with assault. But we already know that some goons are charged with assault through the Criminal Code, based on a lack of consent, the nature of the act and/or the degree of force used. Perhaps the legal code should be enforced more when “the code” in hockey is “enforced,” but I for one don’t want to see players in handcuffs except following malicious, unprovoked or overly violent acts. And if they are guilty of assault, I wouldn’t want to see them back on the ice.

Employment law isn’t so easy to explain away. The recommendations made by NHL general managers at their annual meeting have been called “tweaks” that address less than 45 per cent of fights. (I was happy that the GMs were admitting they had a problem, because in all recovery programs, that is the first step, but perhaps they have another 11 steps to go).

No recommendation came out to make fighting safer. This is noteworthy because, jurisdictional differences aside, there is an onus on employers to take every precaution reasonable for the protection of their workers (kind of like the enforcer’s perceived code) and not doing so can lead to jail time and fines up to $500,000. Both have codes to uphold that may be in conflict.

I talked to two different employment lawyers about the Occupational Health and Safety Act in Ontario.

Robert Salisbury of Gowlings told me that he knows of no reason why the NHL would be exempt from this duty. Paul Lalonde of Emond Harnden LLB concurred. Lalonde was clear that he wouldn’t be signing the petition at

www.banhockeyfights.com any time soon, but he would like to ensure that players’ dreams, like those of Nick Kypreos, aren’t cut short by avoidable injuries.

If the Ministry of Labour did investigate the Ontario NHL franchises, Lalonde says the big question is whether they would rule that fighting was part of hockey players’ jobs or not. If it was deemed part of their job, then the employer’s duty would be to keep players as safe as possible while fighting (i. e. mandatory helmet rules.)

If fighting was ruled to not be part of their job, then players would have to be protected from fighting in the workplace (i. e. total ban on fighting.)

The complicating factor in making this call is that fighting has evolved such that it is only part of some hockey players’ jobs.

Regardless, it appears that GMs have not done enough to cover their blue lines when it comes to “every precaution reasonable for the protection of their workers.”

With one death, one seizure, and a few concussions resulting from hockey fighting in 2009 already, I expected more from the GMs. I would also like to think that Paul Kelly of the NHLPA was more interested in protecting all his members (fighters and non-fighters) by forcing the fight safety issue — and at a minimum demanding helmets stay on during fights.

I don’t want to bubble-wrap players, but I do believe that “every precaution reasonable” would include protecting players with the right equipment where possible, especially following serious hockey workplace “industrial accidents” (better chin straps, mandatory visors, and neck guards anyone?)

Ideally, I’d like to see new equipment rules paired with a ban on fighting enforced effectively by applying escalating fines and suspensions directly to players and franchises.

Unfortunately, all it will take is one avoidable death or serious injury within the NHL (because perhaps the Senior Hockey League and OHL aren’t being viewed as workplaces) or one solid lawsuit from a player suing for extent of physical injuries and emotional pain and suffering sustained from a fight, alleging that his employer failed to provide a safe workplace, to end this debate for good.

I don’t want to see the Ministry of Labour be the one to blow the whistle.

I wish the league would do the right thing now and evolve the game themselves — as they have done in the past — to prevent avoidable injuries. No one wants to see changes in the game come from lawyers’ or government interference.

So, to the Leafs Brian Burke and the Senators Bryan Murray, please note that Lalonde would be happy to counsel you on an employer’s duty under Ontario law. After all, I’d hate to see either of you sent to the real-world penalty box for a lot longer than five minutes.

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