Some workplaces communicate through direct messaging apps, others via e-mail, but NHL dressing rooms run on good old-fashioned text messages.
Wander around the ice-level concourse of an NHL arena and players, coaches and agents can often be found tapping away at their smartphones during idle moments.
It’s unlikely they have spent much time thinking about the consequences of what they’re writing – consequences that were laid bare in NHL commissioner Gary Bettman’s ruling upholding a 20-game suspension to Calgary Flames defenceman Dennis Wideman for cross-checking an official.
Toward the end of the 23-page document, Bettman refers to a now-infamous text Wideman fired off to a teammate saying, “the only problem and the only reason I’m here is ’cause of the stupid refs and stupid media.”
Wait, the NHL has a version of subpoena power? It can obtain and reveal private communications?
Yes and no.
According to the collective agreement between the NHL and the NHL Players’ Association, the league falls under the ambit of U.S. labour law.
As a result, arbitration procedures such as an appeal to the commissioner are subject to broad disclosure requirements, and while evidence can’t be compelled via orders – in the way a court can – it’s in the interests of the parties to co-operate and turn over all non-privileged information (including correspondence with lawyers and spouses).
“He could have refused, but then a negative inference could be drawn from that refusal,” said Eric Macramalla, a lawyer at Gowlings and frequent TSN contributor.
Worse, it could have led to an unfair labour practices complaint before the U.S. National Labour Relations Board – a process with uncertain consequences.
Besides, American case law and constitutional privacy rights limit the scope of the fishing expedition.
According to Colorado-based privacy and cybersecurity lawyer David Navetta, who has written extensively on cellphones and the workplace, it’s more difficult for employers to obtain private communications from devices they don’t own – and hockey players don’t typically carry team-issued phones.
Even then, they can only generally access the data that relates directly to whatever it is that’s being investigated.
“Typically, just because you can have access to information X doesn’t mean you’ll also be able to look at information Y,” said Navetta, a partner at Norton Rose Fulbright in Denver.
Strictly speaking, there is nothing new about the procedure in which Wideman – and linesman Don Henderson – handed over their texts and all other “relevant documentation.”
Similar provisions have existed in previous iterations of the labour agreement, and the Wideman case is analogous to what the NFL demanded from New England Patriots quarterback Tom Brady as part of the Deflate-gate probe.
In Brady’s case, one of the three cellphones he carried at the time was damaged – depending on one’s point of view it either broke or was smashed – and much of the information on it was unrecoverable.
He still disclosed thousands e-mails and text messages; in the end texts sent by Pats staffers were used to support several conclusions in the Wells Report – an NFL-ordered investigation into the under-inflated balls imbroglio.
In Wideman’s case, the oft-cited text had little to do with the justification behind the suspension.
“It was largely irrelevant,” Macramalla said.
Instead, Bettman used the text to support the decision not to reduce the penalty, which he could have done in the presence of mitigating factors.
The NHLPA has appealed the decision to an independent arbitrator, who could consider the case as soon as next week if the parties can find a time and place to meet.
It’s also worth mentioning that the disclosure requirement cuts both ways – the NHLPA had access to Henderson’s texts and e-mails – and that it’s possible for the parties to introduce new evidence at each stage of the process.
As the Wideman appeal grinds to its final conclusion, it wouldn’t be surprising if players around the NHL started plugging “how to permanently delete texts” into the nearest search engine.
What would Macramalla’s advice be?
“It’s simple: don’t text, don’t e-mail,” he said.Report Typo/Error