Graphic Comments: And Patrick Kane Played On

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As I watch the NHL sail into a new season, I am reminded of the Titanic on its maiden voyage, sailing full steam ahead despite warnings of ice in the area. The Titanic, you see, was not like other ships. It was unsinkable. Until it hit the ice.

Similarly, the NHL continues to hold its course despite a variety of warning signs, all the while clinging to the notion that it’s not like other leagues. NHL, you see, is not like other leagues. Its players “know what’s right and wrong.” Until they hit their spouse.

Or worse.

It’s said that as the Titanic sank into the icy waters of the North Atlantic, the “band played on” in an effort to calm the passengers. That’s great, as far as tales of misplaced heroism go. But when dealing with real life and death situations, promoting a sense of normalcy does nothing more than encourage complacency and blind faith in authority and the flawed products of humanity, whether they be an unsinkable ship, or a criminal justice system.

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In light of this, it’s time for the NHL to change its tune. It’s time to stop sweeping the very real problems under the rug. It’s time to do something about the epidemic of still young men taking their own lives after a career spent bashing their head around an NHL rink. It’s time to do something about the alcohol and substance abuse that sees NHL players involved in accidents or swept up in roadside checks while under the influence every off-season. And, it’s time to take a visible stand against domestic violence and sexual assault.

We have here a league that once suspended Sean Avery without pay for making rude comments. Mind you, those comments were completely sexist and inappropriate comments and they damaged the reputation of the league, so the NHL was right in suspending him. The point is, if the league recognizes that mere words can damage its reputation, how can they not see that continuing to allow Patrick Kane to participate in NHL activities will be that much more damaging?

And, yes, I understand that Kane is entitled to his day in court. I am not making a judgement on his guilt or innocence. But from the league’s perspective, there is no upside to allowing him to continue as an active participant in league sanctioned activities until this is resolved. 

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I understand that he hasn’t even been charged yet. But that’s irrelevant. And so are the accusations and machinations on display by all parties on both side at the moment. What we’re witnessing now is a PR battle for public opinion that has nothing to do with guilt or innocence, and everything to do with hearts and minds. Either way, it. Is. Irrelevant.

What matters, from the NHL’s perspective, is whether Kane’s continued participation in league events creates a “substantial risk of material harm to the legitimate interests and/or reputation of the league.” [emphasis added] He has a contract with the Blackhawks and is subject to the provisions of the NHL-NHLPA Collective Bargaining Agreement, including this one, which gives the league the authority to suspend a player even without their own formal review, let alone the conclusion of a criminal investigation:

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So, really, what’s to lose by suspending Kane? Or even just asking him to stay home with pay. I mean, that’s exactly what the NHL did with Slava Voynov less than a year ago, right? That’s what happens in many other jobs when there’s a suggestion of impropriety of some sort, right? Heck, in some jobs you can even shoot somebody and still be put on paid leave pending an investigation and without being charged. 

From the league’s perspective, there are really only four outcomes to consider, each derived from one of the combination of guilty/not guilty and suspended/not suspended. Where is the upside to the league in not suspending Kane if he winds up not even being charged? I understand there’s a different calculation at play for the Blackhawks here, but for the league, what’s the upside?

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I dare say there isn’t one.

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But what if they suspend him, you ask, and he’s eventually found not guilty? Well, then they were just being precautious and protecting their business interests as it is within their rights to do so. Heck, it’s not just their right, it’s their fiduciary duty to protect the interests of the league.

The NHL is not a court of law. Their decision to suspend or not suspend Kane has absolutely no bearing on the resolution of the criminal investigation nor an eventual trial. But it does have an impact on the league’s reputation in general, and on the message they are sending to their customers, especially women, far too many of which are survivors of sexual assault:

In addition, this is about more than just Patrick Kane and his guilt or innocence. He can be completely exonerated tomorrow and the NHL will still have played this out incorrectly from a business point of view and insensitively from a societal point of view. This is about how we, as a society, treat the victims of sexual assault. As @RegressedPDO explains:

The criticisms of the handling of these issues by sports leagues and teams over the past few years will not suddenly become less valid because of how one legal case turns out. Victims of sexual assault, abuse and violence will not suddenly vanish because of how one legal case turns out. Perpetrators of sexual assault, abuse and violence will not suddenly disappear because of how one legal case turns out. The massive power imbalance between those who commit such acts and those who are the victims will not suddenly disappear because of how one legal case turns out.

So what this represents is an opportunity.

An opportunity to take a stand and say to the victims of sexual assault, “You don’t have to keep silent. You can come forward and have your concerns heard. We understand that rape is a serious allegation, and life doesn’t just go on as if nothing happened.”

And if you’re still out there saying, “What about innocent until proven guilty?” all I can say to you, is that is purely a construct of the legal system meant to check the power of the state to imprison the citizenry. In fact, even within the narrow context within which it applies, being found “not guilty” does not imply innocence.

There is no requirement on me, you, the NHL or anyone else to wait until a court of law finds an accused guilty before making decisions and taking whatever action we deem appropriate within the bounds of existing contracts and the law of the land. The NHL is perfectly within its rights to take action to protect its interests and not dismiss the concers of tens of thousands of its own fans, while still respecting due process.

But hey, if you want to hang your hat on that one, you know who else wasn’t found guilty in a court of law? OJ Simpson.

Finally, I want to conclude with a word about the media coverage of this whole situation. For the most part, the mainstream hockey media has been noticeably and appallingly silent. There are some occasional retweets of non-hockey journalists in Chicago or Buffalo covering the developments. Or sometimes a virtual shrug of the shoulders, hiding behind the “ongoing investigation” or “we just don’t know anything” or “we aren’t legal experts”.

Well, neither am I.

But somehow, despite that, I’ve managed to formulate an opinion on what the NHL should be doing from a purely business perspective outside of the ongoing legal process. You can disagree with it. That’s fine. The point is that what the NHL does and the outcome of the legal process are mutually exclusive. You can separate the two things. Really.

Or you can just pretend nothing is happening, asking everyone to keep calm.

And the band played on.

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  • Charlie Allnut

    Hey Petbugs, Graphics are no substitute for the rule of law, which holds that Kane is innocent until proven guilty beyond a reasonable doubt. That’s much different than “having his day in court,” whatever that means. You should check out the latest news on the case, where the accuser’s lawyer quit over being lied to and mislead and manipulated by his client, concerning the bizarre story of the empty evidence bag stuck in her mom’s screen door. Like the lawyer said, in over 30 years of practice, he’s never seen anything like that before. Have you a diagram for that one?

  • acg5151

    I completely disagree with this because we don’t even know if he’s done anything illegal yet. This is all premature. When he is brought to trial or charged, he should probably be barred from the NHL until it is settled, but to my knowledge that hasn’t happened yet.

  • beloch

    And if you’re still out there saying, “What about innocent until proven guilty?” all I can say to you, is that is purely a construct of the legal system meant to check the power of the state to imprison the citizenry. In fact, even within the narrow context within which it applies, being found “not guilty” does not imply innocence.

    This is a disquieting paragraph. You’re basically saying we should presume people are guilty, because presuming they’re innocent is really just for the courts. You’re also saying that people who are found “not guilty” might not be innocent anyways.

    I sincerely doubt you’d feel this way if, for example, you were accused of a petty crime, such as shoplifting. You’d probably feel that the onus should be on the accuser to prove your guilt and, if he fails to do so, it should be over. If you have a buddy who was once accused of shoplifting, but it was never proven, you’re probably okay assuming he was innocent. The same does not hold for accusations of sexual assault. You’re far from alone in believing that certain types of accusations should be assumed to be true in order to encourage victims to come forward. However, doing so actually has the opposite effect.

    If a rape victim comes forward to the police, the first thing they will do is attempt to persuade him/her not to go forward with the accusations. Why? They know the mere accusation of sexual assault carries 90% of the consequences that a conviction does. A convenience store owner can accuse you of shoplifting and let his security camera footage do the talking. If he’s wrong, hey, he made a mistake. No big deal. If you accuse someone of rape, on the other hand, the case had better be air-tight because, if you fail to prove your case, you’ll be blamed for ruining someone’s life. Even if the accusations truly do not have merit, the stain of such accusations will remain for a lifetime.

    That’s a lot to deal with when considering whether or not you should come forward, and it’s probably the main reason why sexual assault goes unreported so often. If “innocent until proven guilty” was truly how most people thought about this type of crime, victims would not face such hostility when making their accusations. Police would take their side immediately instead of putting up barriers to make sure weak cases don’t slip through. If an accuser can’t provide enough evidence to make their case stick, it would be no big deal. True, it would be no big deal to the accused either, but if more victims come forward you’re still going to wind up way ahead in actual convictions.

    We need to make it easier to for victims to come forward, but immediately acting on their word as if it was the gospel truth accomplishes just the opposite. Presumption of innocence is not just for the courts. It needs to apply to society as well in order to make it easy for victims to come forward.

    So, what does this mean for Patrick Kane? If presumption of innocence really held for this kind of case, he’d be able to work normally until the courts decide his fate. If everybody was fine with that, his accuser would likely not be cowering in protective custody trying to ignore all the death threats she’s receiving. People would be satisfied with being patient and letting the courts do their job. That’s obviously not what’s going to happen.

    Barring a miraculous and clear-cut reversal, such as his accuser being utterly discredited, Kane’s career may well be done. The tampering with evidence that may have occurred really makes him look bad. He’s off the cover of NHL 2015. His endorsements are gone, probably for life. He’s off the Hall of Fame ballot for good. The league undoubtedly wants him gone. However, if they suspend Kane, the Hawks may seek redress for being denied the services of their star player in the case that the courts eventually decide he’s innocent. The NHL is therefore likely waiting for the Hawks to suspend Kane. It’s craven butt-covering to be sure, but there it is.

    Be honest with yourself and think critically. Does what’s happening to Kane right now make it easier or harder for victims to come forward with accusations against prominent sporting figures?

    Personally, I’m a product of the culture we live in. I may objectively believe that presumption of innocence is important, but I’ll never be able to look at Kane the same way again. Just like you, I instinctively believe that fame and wealth can buy a “not guilty” verdict. That really is a shame, not for Kane’s sake, but because of what it means for all the victims out there who didn’t have the courage to face creating this kind of storm. The guilty will go unpunished because of how we treat this case.

  • pheenster

    The quoted section of the CBA is pretty compelling to me. Have some empathy for victims of sexual assault, and hold him out until it’s settled as you are legally (hey there’s that word on this side of the argument) can do.

  • teddycanuck

    I completely agree with you and see no harm in telling him to stay home for a few weeks and see what happens. Let’s also not forget this is not Mr. Kane’s first run-in with embarrassing the league.

  • Betty

    Like almost every issue, there’s balance, nuance and consequences which seem completely lacking in this article.

    “But from the league’s perspective, there is no upside to allowing him to continue as an active participant in league sanctioned activities until this is resolved. ” – Really? Does the author really think this, or do they just feel it? A rape trial, especially with a non guilty plea, can last a very long time. Imagine it took say, longer than 8 months (ie, into the playoffs) If I really have to spell out the detrimental effects that would be felt by the league, and the incredible vitriol and fight that decision would bring, then the author shouldn’t be writing. I’d be hard pressed to imagine a more effective way to get tens, if not hundreds of thousands of people to be angry the victim, to formulate an opinion about rape trials based on their sporting allegiance or to take other rape allegations less seriously.

    On innocent until proven guilty “is that is purely a construct of the legal system meant to check the power of the state to imprison the citizenry.” Are you serious? At this point, I’m concerned that this is satire. The entire foundation of the justice system is such that someone should never have to prove they are innocent, instead, the presumption is that they are in fact innocent and the burden of proof lies on the prosecution. As Blackstone wrote back in the 1700s, “It is better that ten guilty persons escape than that one innocent suffer.” Personally, I think upending one of the fundamental principle upon which our judicial system is based, is a little outside the purview of a hastily written canucks article.

  • teddycanuck

    Correct me if I’m wrong, but the prevailing idea is the pendulum is starting to swing towards recognition of how victims of sexual assault have been treated in the past.

    In efforts to support future justice and create a better environment in which sexual assaults diminished and victims are more willing to come forward, cases like this should be dealt with differently by public leagues like the NHL.

    Again, arguing “innocent until proven guilty” is for the courts, not the NHL. It’s also a red herring in this conversation. The NHL can send a message that sexual assault or crimes against women is brutal by just telling Kane to say home with pay. It’s within their rights to do so.

  • wojohowitz

    I don`t understand the role public perception plays in a criminal court case. It should have no influence but it seems so important to the US justice system.

  • Betty

    If the league suspends Kane because of these serious allegations even though there are no charges against him, and after I’m sure they have found out as much as they could about the case behind closed doors, they put themselves at risk by setting such a dangerous precedent. Anyone, given enough financial interest or some other motivation, could concoct a scenario where a team’s star player is accused of false allegations. Even though the investigation may be quick to discover the absurdity of the allegations, they would have no choice but to suspend said player until he has been cleared. Maybe a day, maybe a week, who knows. But in lets say in -oh I don’t know – the Stanley Cup Finals, for example, it could have HUGE repercussions. It is a very slippery slope.

    You say there is no risk in suspending him. I think there is as well as “substantial risk of material harm to the legitimate interests and/or reputation of the league.”

  • Laxbruh15

    God this is embarrasing. There’s a reason why that legal construct exists aside from protecting citizens from their government, you don’t have all of the information even if you want to pretend that you have enough to come to a decision. A women or any person shouldn’t have the ability to destroy a person’s life or their reputation based upon a claim backed up by nothing other than skin cells underneath her nails and shoulders. Your trying to back up a claim with nothing supporting it other than what if. I’m going to guess that your feeling a little defensive because it looks like the women made it up or significantly exaggerated what happened and you still desperately want to be right. In this situation kane could end up being the victim. Should the accuser be publicly humiliated and taken out of work because they could be lying? No, this has long term effects on kane and how he’s viewed inside the hockey community. What you want is prosecution regardless of law and without the ability for the to defendant to defend themselves. Your abusing your access to the media and a large group of people by pushing a ridiculous agenda.

  • Charlie Allnut

    I’m not with the suspend him to support victims of sexual assault camp. At this point, Kane has been accused, but no charges laid. As soon as, or if, charges are laid, then the NHL can suspend him indefinitely.

    If Kane is charged and eventually found guilty, who cares that he continued his career for a few weeks before there was sufficient evidence to proceed. He’d get the punishment he’s due when the legal process is played out. To me, It is a greater wrong to punish someone without evidence, than to wait until there is something to punish them for, and then throw the book at them.

    This week was a media circus for the case, and I for one changed my opinion more than once on the whole thing. There were a number of writers in print and the blogosphere I read that looked silly after the evidence tampering turned out to be a hoax.

    The NHL is right to be mum on the subject until their hand is forced.