Is the NHL Sending the Wrong Message? A Suspension for Patrick Kane Seems Unlikely
Photo credit: https://www.flickr.com/photos/chicagozen/
By Ashley Albano*
Most Chicago Blackhawks players were celebrating their 2015 Stanley Cup win this summer, but not Patrick Kane.[1] Patrick Kane, also known as “Kaner,” has instead been facing an off-ice investigation. A normal night on the town turned into a nightmare for Kane, who is accused of assaulting one of the women who accompanied him to his home.[2]
On August 1, 2015, Kane and friend were at SkyBar a downtown nightclub in Buffalo, New York. While the details get fuzzy, Kane leaves the bar in the early morning hours of August 2, 2015 with two females and a male friend to go to his home in the Town of Hamburg.[3] The woman alleges that after arriving at Kane’s home, she went into a room alone, was followed by Kane, and was subsequently raped by him.[4] After leaving Kane’s house and immediately calling a relative, she went to the hospital for an examination.[5] While no charges have been filed as of yet, Kane is being investigated for these allegations.
Kane Dropped from EA Sports Cover, But Is That All?[6]
Patrick Kane has been hailed as the hockey superstar that saved the sport.[7] However, he has a lot to lose if this investigation becomes more than what he calls a “distraction.”[8] Kane has not been indicted, or found guilty, but he is under investigation, and while Kane might be (at the moment) free of criminal charges the NHL is not without a potential means of punishment. Innocent until proven guilty still applies to professional athletes in the criminal justice system, but perhaps not in NHL’s justice system.[9]
The NHL has the authority to cancel a player’s contract when the Commissioner “determines that a Player has been or is guilty of conduct that is detrimental too . . . the League or the game of hockey.”[10] For suspensions, Article 18-A of the Collective Bargaining Agreement (CBA) states:
Criminal Investigation. The League may suspend the Player pending the League’s formal review and disposition of the matter where the failure to suspend the Player during this period would create a substantial risk of material harm to the legitimate interests and/or reputation of the league.[11]
The NHL has not yet taken advantage of this authority in Kane’s case. NHL Commissioner, Gary Bettman, recently stated that the League is “going to have to watch the process play out and at the appropriate time, [it will] make whatever decisions have to be made at the time.”[12] While the investigation continues, Kane was present for a pre-game skate just a short time after the allegations.[13] Rumors of a civil agreement between Kane and the alleged victim do not settle the ongoing criminal investigation.[14] Despite the gravity of the circumstance, the NHL has not conducted its own investigation into the matter.[15]
Checking the NHL’s Consistency
The League’s reaction to Patrick Kane is much unlike its reaction to Los Angeles Kings defenseman Slava Voynov earlier this year. Setting a precedent of suspension with pay, the League suspended Voynov during an investigation of domestic violence.[16] Additionally, when Voynov attended practice with the Kings despite his suspension, the Kings were fined.[17] The League’s conduct in Voynov’s case may be unfair when compared to the lack of response in Kane’s investigation.[18]
Patrick Kane is a well-known star player of the Chicago Blackhawks.[19] Perhaps Kane’s stardom is the reason that the NHL has not suspended him as of yet.[20] Because of the NHL’s relatively clean image, the League should consider being more consistent when dealing with similar criminal investigations.[21] However, Commissioner Gary Bettman’s case-by-case strategy will create anything but consistency.[22] In fact, in other sports, it is likely that Kane would have been suspended.[23] However, with the support of the League, the team, and the fans, a suspension at this time seems unlikely.[24] For Patrick Kane, the only ramification he may face is a tainted reputation.[25]
A Different Approach to Domestic Violence
The NHL is not immune from the issues facing other leagues like the NFL.[26] However, the NHL’s approach to its domestic violence incidents varies considerably from the steps taken by other leagues, specifically the NFL. The NFL strives for transparency in dealing with this issue and intends to make an impact on domestic violence and sexual assault inside and outside of the League.[27] The NFL, lead by Commissioner Goodell, set out goals for the League including using “the NFL platform to work towards changing long-standing social norms that include shame, blame and a general unwillingness on the part of many to discuss these issues out in the open.”[28] While the goals include ongoing, mandatory education session, the League also updated it Personal Conduct Policy to include “[a] baseline suspension of six games without pay for violations including . . . domestic violence . . . or sexual assault.”[29]
Instead, the NHL has been relatively inactive when addressing domestic violence and sexual assault issues within the League. The League’s case-by-case strategy is accompanied by education, but has not been reformed recently.[30] Despite its lack of popularity in the United States, the NHL has an opportunity to be as transparent as the NFL has been when it deals with domestic violence and sexual assault.[31] Both the NHL and the Chicago Blackhawks have the authority to suspend Kane, or at the very least, to use their platforms to raise awareness on this issue, but both have neglected to do either.[32] Supporting this inaction, Commissioner Bettman stated, “our players know what is right and wrong”;[33] however, only time will tell if this approach will “have dire consequences for the league’s improved reputation.”[34]
For more in the Domestic Violence in Sports series, see “
* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University School of Law.
[1] See Dan Herbeck et al., Alleged Victim Reportedly Went to Kane’s Home to Accompany Friend, Buffalo News (Aug. 12, 2015, 5:45 PM), http://www.buffalonews.com/city-region/hamburg/alleged-victim-reportedly-went-to-kanes-home-to-accompany-friend-20150812 (reporting on events that happened on night of alleged rape). Kane was supposed to have a party at the SkyBar with the Stanley Cup a few weekends after the alleged assault, but instead had a small party at his home, which was “more like a funeral,” according to an insider. See id.
[2] See Dan Herbeck & Lou Michel, New Details Emerge in Allegations Against NHL Star Patrick Kane, Buffalo News (Aug. 9, 2015, 6:36 AM), http://www.buffalonews.com/feed/new-details-emerge-in-allegations-against-nhl-star-patrick-kane-20150809 (reporting new details in investigation of Kane).
[3] Compare Alleged Victim Reportedly Went to Kane’s Home to Accompany Friend, supra note 1 (reporting that alleged victim did not want to go home with Kane in first place), with Dan Herbeck et al., Off-Duty Officer was Kane’s Driver on Night of Alleged Rape, Buffalo News (Aug. 15, 2015, 7:15 PM), http://www.buffalonews.com/city-region/hamburg/off-duty-officer-was-kanes-driver-on-night-of-alleged-rape-20150815 (stating that Kane’s driver reported alleged victim was one who wanted to go to Kane’s home).
[4] See New Details Emerge in Allegations Against NHL Star Patrick Kane, supra note 2 (reporting new details in investigation of Kane).
[5] See id. (noting that alleged attack occurred at about 4 a.m., about one hour after Kane was seen leaving bar). According to sources with knowledge of the investigation, the woman had bite marks on her shoulders and scratches on her legs after the alleged attack. See id. But see Mike Zeisberger, Chicago Crowd Cheers For Controversial Kane, Vancouver Province (British Columbia), Sept. 23, 2015, at A72 (reporting that DNA tests taken from rape kit showed no trace of Kane’s DNA on woman’s genital area or on her undergarments, according to four sources familiar with case).
[6] See EA Sports Drops Kane From Game Cover, Boston Globe, Aug. 13, 2015, at D7 (reporting EA Sports’ announcement that Kane would no longer appear on game cover as planned). As a result of the police investigation, Patrick Kane will no longer appear beside his Chicago Blackhawks captain, Jonathan Toews, on the cover of the EA Sports game NHL 16. See id.
[7] See Michael Powell, Patrick Kane’s Status Is Shrouded in Silence, N.Y. Times (Sept. 15, 2015), http://www.nytimes.com/2015/09/16/sports/hockey/patrick-kanes-status-is-shrouded-in-silence.html?_r=0 (discussing Kane’s status as hockey star).
[8] See Hockey Star Accused of Sexual Assault Insists He Will Be Cleared and Apologizes For the Distraction, MailOnline, Sept. 18, 2015 (reporting on Blackhawks press conference with Kane). Kane, who signed an $84 million contract with the Blackhawks, called the rape allegations a “distraction.” He also stated, “I cannot apologize enough for the distraction this has caused my family, teammates, this incredible organization and, of course, our fans.” Id.
[9] See Jack Todd, NHL Must Suspend Kane; League Needs to Send Out the Right Message Until Rape Allegation Resolved, Ottawa Citizen, Aug. 17, 2015, at B5 (discussing how NHL has power under collective bargaining agreement to suspend player who is suspect in criminal case even before proven guilty).
[10] Larry Brooks, Justice League NHL Shouldn’t Be Delivering Verdicts SLAP SHOTS, N.Y. Post, Sept. 20, 2015, at 79 (explaining justice system within NHL). Patrick Kane is a professional athlete and still should has the same rights as everyone else, in that he is innocent until proven guilty. The NHL is not a police force, and thus it may not be fair to suspend Kane on mere suspicion and allegations. See id.
[11] Id. (quoting NHL CBA, Article 18-A).
[12] Christine Brennan, Time for NHL to sit Patrick Kane following latest controversy, USA Today (Sept. 24, 2015, 3:14 PM), http://www.usatoday.com/story/sports/christinebrennan/2015/09/23/patrick-kane-sexual-assault-allegation-rape-kit-chicago-blackhawks/72700154/ (quoting Bettman’s statement to The Buffalo News). Instead of watching Kane’s case, this allegation is the perfect time for the NHL to begin to speak out against this violence and lead sports organizations to discuss the issues upfront. See id. (arguing that it is time for NHL to suspend Kane after what NFL went through last year).
[13]See Zeisberger, supra note 5 (noting that “cheers rained down from the rafters when the video screen focused in on a close-up of Kane leaving the ice”); see also Sharing Their Opinions Hawks: Fans Share Thoughts on Kane, Chicago Daily Herald, Sept. 22, 2015, at 1 (reporting on fans feelings toward Kane). According to the a Chicago Daily Herald survey at Blackhawk’s training camp, 88 percent of 17 fans asked stated that Kane should be at the training camp, and most stated that Kane should not be suspended until the case is resolved. See id.
[14] See Eric Macramalla, Legal Impact: Patrick Kane’s Grand Jury Proceedings Suspended in Sexual Assault Case, Forbes (Sept. 8, 2015, 5:53 PM) http://www.forbes.com/sites/ericmacramalla/2015/09/08/legal-impact-suspension-of-patrick-kanes-grand-jury-proceedings-into-sexual-assault-case/ (reporting that “grand jury proceedings . . . have been suspended pending the outcome of settlement negotiations between Kane and the alleged victim,” but noting that “any settlement that is brokered . . . does not bind the prosecutor” who “may still proceed with a criminal case against Kane”); cf. id. (noting that if NHL could potentially face defamation suit if it suspends Kane, but he is not charged). The accuser’s lawyer withdrew from the case because he no longer believes the account of the accuser’s mother. The mother stated that an “empty evidence bag that once contained the [accuser’s] rape kit had been left anonymously on her . . . doorstep.” Furthermore, the friend of the accuser who was also at Kane’s house on the morning of August 2 is beginning to express reluctance to testify. See Jared S. Hopkins & Stacy St. Clair, Lawyer For Patrick Kane’s Accuser Quits; Sources Say Witness Reluctant to Testify, Chicago Tribune (Sept. 25, 2015, 7:09 AM), http://www.chicagotribune.com/news/local/breaking/ct-patrick-kane-sedita-evidence-20150924-story.html (discussing latest update in Kane controversy).
[15] See Sarah Connors et al., The NHL Has a Responsibility to Suspend Patrick Kane, SB Nation (Sept. 24, 2015, 1:26 PM), http://www.sbnation.com/2015/9/24/9372909/nhl-should-suspend-patrick-kane-pending-investigation (arguing that NHL has responsibility to suspend Kane); Todd, supra note 9 (discussing seriousness of rape allegations against Kane).
[16] See Connors, supra note 15 (discussing Voynov’s charges and suspension); Scott Stinson, Allowing Kane in Camp Sends Wrong Message; With Grand Jury Examining Rape Allegation, Best to Leave Star at Home, Edmonton Journal (Alberta), Sept. 18, 2015, at E6 (reporting that NHL Commissioner, Gary Bettman, immediately suspended Voynov following arrest for suspected domestic violence).
[17] See Todd, supra note 9 (noting sanctions Kings received after allowing Voynov to play with team).
[18] See Anonymous, The Patrick Kane Case as Seen By a Flyers Fan and Sexual Assault Survivor, SB Nation (Oct. 2, 2015, 10:08 AM), http://www.broadstreethockey.com/2015/10/2/9435187/patrick-kane (reflecting on fan’s own experience with sexual assault). One writer describes the League’s lack of suspension as “a sorely-missed step in the right direction,” and argues that the League, that advocates “Hockey Is For Everyone,” becomes an unsafe environment when it neglects to acknowledge its recent domestic violence issues. See id.
[19] See Damien Cox, Patrick Kane Issue a Black Cloud Over the NHL, Sportsnet.ca (Sept. 9, 2015, 9:48 PM), http://www.sportsnet.ca/hockey/nhl/patrick-kane-issue-a-black-cloud-over-the-nhl/ (“Kane is at present the most high profile American player in the league.”).
[20] See id. (arguing that Kane should be suspended). The NHL set a precedent with Voynov by suspending him very quickly after the investigation of domestic abuse. Here, however, Kane, who is much more recognizable as a hockey star than Voynov, is getting different treatment. This differential treatment could be happening because the NHL is giving more “latitude” to hockey superstars than less-famous players. See Stinson, supra note 16 (suggesting that “[i]t looks a lot like the standard is that superstars will get far more latitude than less-famous players”).
[21] See Pierre LeBrun, League Moving to Educate Players, Curb Off-Ice Issues, ESPN (Sept. 14, 2015), http://espn.go.com/nhl/story/_/id/13622824/nhl-ice-issues-prompt-action-league-players (discussing current issues tainting NHL’s image); Brennan, supra note 12 (noting differences between Voynov and Kane, but acknowledging similarity in situations); see also Todd, supra note 9 (“[T]he NHL needs to send the right signal by suspending Kane until this is resolved, one way or another.”).
[22] See LeBrun, supra note 21 (quoting Bettman: “we believe you deal with it on a case-by-case basis, because rarely are two of these circumstances identical”).
[23] See id. (discussing how other leagues may have handled Kane). NASCAR driver Kurt Busch was suspended on allegations of domestic violence. Football offensive line coach was suspended on basis of a 911 call. Olympian Michael Phelps was suspended for three months because of a mere photo of him apparently smoking marijuana. Even professional women athletes have been suspended for allegations of domestic violence. But Kane, who is under investigation for rape, has not been suspended and he continues to play with the team. If he played any other professional sport, he most likely would be suspended. See Brennan, supra note 12 (discussing preemptive actions taken by other professional sports leagues).
[24] See Sharing Their Opinions Hawks: Fans Share Thoughts on Kane, supra note 13 (reporting survey showing support for Kane amongst Blackhawks’ fans); see Scott Stinson, Blackhawks’ Handling of Kane Sends the Wrong Message, Gazette (Montreal), Sept. 18, 2015, at C3 (arguing that during press conference there was feeling that “the Chicago Blackhawks believe the accuser to be lying, and they don’t mind if you also come to that conclusion”).
[26] See LeBrun, supra note 21 (observing that “hockey is sharing some of the same dubious headlines normally reserved for other sports and leagues”).
[27] See The NFL’s Response to Domestic Violence and Sexual Assault, NFL.com (Dec. 5, 2014, 10:57 PM, updated Aug. 12, 2015, 2:10 PM), http://www.nfl.com/news/story/0ap3000000439286/article/the-nfls-response-to-domestic-violence-and-sexual-assault (acknowledging that domestic violence and sexual assault “know no boundaries”).
[28] Id. (announcing other goals of NFL).
[29] Id. (describing new rules as “tough, fair, clear and consistent” (emphasis added)).
[30] Compare LeBrun, supra note 21 (quoting hockey center Sidney Crosby: “The league and players’ association do a good job of informing us and making us well aware of certain situations and consequences . . .”), with Cari Grieb, Patrick Kane Case Hasn’t Changed NHL’s Attitude on Sexual Assault, Sporting News (Aug. 21, 2015, updated Aug. 28, 2015), http://www.sportingnews.com/nhl/story/2015-08-21/patrick-kane-arrest-crime-charge-suspended-rape-sexual-assault-blackhawks-buffalo (reporting that Gary Bettman “has expressed no interest in negotiating a domestic violence and sexual assault policy with the NHL Players’ Association”).
[31] See Grieb, supra note 30 (implying popularity of leagues corresponds to response of public following “high-profile domestic violence and sexual assault cases”). The league may be the “fourth most popular professional sport,” id., but taking some action on this domestic violence and sexual assault issue is owed to fans and victims. See generally Todd, supra note 9; The Patrick Kane Case as Seen By a Flyers Fan and Sexual Assault Survivor, supra note 18.
[32] See Grieb, supra note 30.
[34] Cf. id. (“The NHL has made significant progress rebranding and remarketing itself after multiple work stoppages in the last decade; a rape investigation surrounding one of its star players would have dire consequences for the league’s improved reputation.”).
