Wideman’s 10-Game Suspension Stands Despite NHL’s Insistence that Arbitrator Overstepped his Bounds

A New York federal judge recently confirmed the decision of James Oldham, an arbitrator, to reduce Calgary Flames defenseman Dennis Wideman’s suspension for hitting a referee.

As background, in January, 2016 Wideman was hit by another player while on the ice, which caused him to suffer a concussion. As he was skating to his bench, Wideman — looking dazed and confused — collided with a referee, Henderson. Henderson hit the ground and suffered from a concussion. The commissioner suspended Wideman for the minimum amount of time for a hit to an official meant to cause harm.

Subsequently, the NHL Players’ Association moved for arbitration, and in June, the NHL sought to reinstate the full suspension. Notably, Oldham reduced Wideman’s suspension from 20 games to only ten.

The NHL argued that Oldham failed to decide whether the evidence supported the commissioner’s opinion, but rather, simply issued his own opinions. As support, the NHL contended that the collective bargaining agreement directs arbitrators to weigh the evidence in order to determine whether the ruling was supported by substantial evidence. Wideman maintained that the Collective Bargaining Agreement’s language allowed the arbitrator to consider evidence not available to the commissioner when he made the initial decision.

U.S. District Judge Alison J. Nathan held that Oldham acted within his authority pursuant to the Agreement, confirmed his decision, and denied the NHL’s summary judgment request. The order stated that, “[w]hether or not the arbitrator’s ultimate conclusion was the most appropriate one, then, it is at least the case that the evidence presented to him—including both new evidence and evidence already presented to the commissioner—was not so one-sided as to preclude any arbitrator acting within the scope of his authority from reaching the same conclusion.”

The court began by looking at Oldham’s standard of review, which included a discussion of how new evidence would be treated. Oldham stated that he would uphold the commissioner’s decisions if it was supported by substantial evidence, which granted him the authority to hear new evidence. Judge Nathan’s order found that Oldham settled on a standard somewhere between deferential and de novo, and “[i]t is against this standard—an unquestionable arguable interpretation of the CBA—that the court evaluates the rest of the arbitrator’s decision.”

Because Judge Nathan ruled that Oldham found that there was not “a scintilla of evidence” to suggest why Wideman would intentionally hit the referee, Oldham thus illuminated his disagreement with the commissioner’s findings. Oldham based his conclusion on testimony given by an NHL executive, which was not previously heard. Further, Oldham disagreed with the commissioner’s reliance on Wideman’s testimony that a hit such as the one inflicted on the referee would likely cause injury—as this had no relation to Wideman’s intent at the time of the accident. Therefore, the “language does not suggest that the arbitrator settled on what he viewed to be simply the more likely of two reasonable interpretations, but that he had a ‘fundamental disagreement’ as to what the evidence could reasonably show.

Because Oldham weighed all the competing factors in reaching his conclusion, “[w]hether or not his ultimate conclusion was the only reasonable one, then, the arbitrator’s analytical process does not make unambiguously clear that he failed to apply the standard of review he laid out.”

While the NHL issued a statement stating that it disagreed with the court’s decision, they “are prepared to turn the page and move on,” and are hopeful that in the “next appeal proceeding involving supplementary discipline, the neutral discipline arbitrator will properly apply the standard of review we and the NHLPA negotiated and greed to in collective bargaining.”

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