Measuring Mental Capacity in Sports: The Dennis Wideman Incident
On February 3, 2016, the National Hockey League suspended Calgary Flames defenseman Dennis Wideman for 20 games. This was in response to an incident that occurred about a week previously, where Wideman made physical contact with an official, linesman Don Henderson.
Before diving into a discussion, here is the rule that Wideman allegedly broke:
40.2 – Physical Abuse of Officials
Any player who deliberately strikes an official and causes injury or who deliberately applies physical force in any manner against an official with intent to injure, or who in any manner attempts to injure an official shall be automatically suspended for not less than twenty (20) games. (For the purpose of the rule, “intent to injure” shall mean any physical force which a player knew or should have known could reasonably be expected to cause injury.)
The incident can be seen here. As the video shows, prior to the incident, another player checked Wideman hard causing his head to hit the boards. Visibly shaken, he began to skate towards his bench. Prior to exiting the ice, however, he raised his arms and, while almost veering away from him, appears to ‘cross-check’ the official, who went to the hospital following the game and was subsequently diagnosed with a concussion. It should also be noted that following the game Wideman was also diagnosed with a concussion.
In the reasoning for the suspension, the NHL cites the ending of rule 40.2, which says that a player ought to know when physical contact could have reasonably caused harm. The league argues that Wideman’s actions following the check indicated awareness of his surroundings, thus he ought to have known to avoid the contact.
Deliberate physical contact with an official is unacceptable in any sport. The same standard applies here, Wideman’s state of mind prior to his offence brings the nature of the physical contact into question. It is widely accepted that a concussion can throw off your balance and level of coherence.
On the NHL’s reasoning, the fact that Wideman slapped his stick on the ice to indicate a shift change and appeared to skate with no difficulty, albeit slowly, indicated that he was not suffering any cognitive defect.
Because s. 40.2 uses an objective standard (“ought to have known”) it may catch conduct that results from hindered coherence or accidental contact. This begs the question: how should the NHL deal with players that make contact with a referee while they are experiencing the infancy stage of a concussion?
The problem is that the NHL’s rules do not properly define the scope of conduct that should be considered accidental. To be fair, the harsh standard is likely intended to protect officials and the league should justifiably take any and all situations in which physical contact with officials occur very seriously.
However, if Wideman did experience a concussion, one could argue that his awareness had been hindered, which could have made his contact with the referee accidental—or at least unintentional. Granted, concussions do vary in severity and the nature of Wideman’s concussion has not yet been released. In his appeal, Wideman will have to show that his concussion was severe enough to hinder his responsiveness.
We have all learned about involuntariness in our 1L criminal law classes. To be clear, Wideman could very well be the guilty party here. That being said, he still experienced a concussion and could have very well been feeling some type of disorientation. His actions, then, may have been involuntary. One could argue that, in his state of mind, Wideman was unaware of his surroundings. He does appear to move away from the official prior to the contact, which may have been an effort to avoid contact.
Nevertheless, the conduct of Wideman, who stayed in the game and stated he was “fine”, indicates mostly a coherent state of mind. But if it was not, how does the NHL proceed?
The Calgary Flames have supported Wideman’s appeal, stating they believe the incident was accidental contact. However, Wideman’s appeal is not guaranteed to succeed. While he definitely was not completely incoherent, it is possible Wideman was not in a totally clear state of mind. The NHL would have to then define intentionality as something that requires a certain level of competency and awareness, an element that may be difficult to prove. This level of coherency would have to coincide with a player who should have known that their contact was likely to cause injury.
Surely we cannot expect the same level of reasonableness from a recently-concussed player as we do a player who is not experiencing some type of disorientation. The reasonable person is generally judged on a modified objective standard, and the question is: “what would a reasonable person who had just experienced a concussion have done in the circumstances?”
Regardless of how this plays out, it has created an unprecedented situation in hockey. The rules surrounding contact with officials may seem black and white, but recent recognition of the cognitive effects of concussions—even in early stages—has made the guidelines more complicated. The league may find itself re-evaluating the meaning of “intentional” to take potentially concussed players into account, and modify the objective “reasonable player” standard to give weight to the situation on the facts. It is clear that Wideman will likely argue he did not mean to hit the official, supported by the fact that was not in the right state of mind. If the NHL chooses to sustain the suspension, they will set a standard for measuring mental awareness, which will undoubtedly affect future decisions on similar incidents.
Jordan Kirlik (1L) is a contributor to Juris Diction and an executive member of the Queen’s Sports and Entertainment Law Society (SELS).