Text of Bettman's ruling on Bertuzzi
Canadian Press
8/8/2005 5:43:02 PM
NEW YORK (CP) - Text of commissioner Gary Bettman's ruling Monday on Todd Bertuzzi:
This will set forth my decision regarding the request for reinstatement as an active NHL player made by Todd Bertuzzi in connection with his discipline for an on-ice incident involving Steve Moore in a game at General Motors Place in Vancouver, British Columbia, on March 8, 2004. This decision is rendered pursuant to my authority under NHL Official Rule 33A (Supplementary Discipline), Article 18 (Commissioner Discipline), and Exhibit 8 (Procedures Relating to Commissioner Discipline) of the Collective Bargaining Agreement. Summary of Relevant Facts=
On February 16, 2004, the Vancouver Canucks played a game against the Colorado Avalanche at the Pepsi Center in Denver, Colorado. During that game, Steve Moore, playing for Colorado, delivered a bodycheck to Vancouver captain Markus Naslund, resulting in an injury which forced Mr. Naslund to leave the game to receive medical treatment, and which injury was later diagnosed as a concussion. There was no penalty assessed in connection with Mr. Moore's bodycheck of Mr. Naslund, nor was any supplementary discipline assessed after the game.
Subsequent to that game, several Vancouver players, including Mr. Bertuzzi, were quoted as having made public statements specifically regarding Mr. Moore's hit on Mr. Naslund, and promising retaliation. Colin Campbell, Executive Vice President, Director of Hockey Operations, called Brian Burke, then-General Manager for Vancouver, to discuss such statements, and decided to attend the next scheduled game between Vancouver and Colorado. Mr. Campbell attended the March 3, 2004 game between the teams in Colorado, as did I, which game was played without incident.
Five nights later on March 8, 2004, the Canucks and Avalanche played the final regular-season game between the two teams in Vancouver. In the third period, with the score 8-2 in favor of the Avalanche, Mr. Bertuzzi attempted to confront Mr. Moore, but Mr. Moore ignored Mr. Bertuzzi's advances, instead remaining intent on following the play. Having been unable to engage Mr. Moore in a mutual confrontation, at 8:41 of the third period, Mr. Bertuzzi grabbed Mr. Moore's sweater from behind and then punched him in the neck, from behind, with his right gloved fist, jumped on Mr. Moore's back, and drove Mr. Moore down to the ice, face first. Mr. Bertuzzi then again attempted to hit Mr. Moore, but was restrained from doing so by various players from both teams who had already intervened in the altercation. Mr. Moore required immediate medical assistance and was subsequently removed from the ice on a stretcher.
The game officials assessed Mr. Bertuzzi a Match Penalty under Rule 52(a) (Deliberate Injury of Opponents). The medical reports issued at or around the time of the incident indicated that Mr. Moore suffered undisplaced right-sided C3 and C4 transverse process fractures, facial lacerations, and a concussion with loss of consciousness of approximately two (2) minutes, accompanied by approximately 25 minutes of total amnesia. The Rule At Issue=
Rule 33A (Supplementary Discipline) provides in relevant part as follows:
''In addition to the automatic fines and suspensions imposed under these Rules, the Commissioner may, at his discretion, investigate any incident that occurs in connection with any Pre-season, Exhibition, League or Playoff game and may assess additional fines and/or suspensions for any offense committed during the course of a gamea.''
The scope of the Commissioner's authority in this regard, as well as the procedures employed in determining appropriate discipline for on-ice conduct, are further defined in Article 18 (Commissioner Discipline) and Exhibit 8 (Procedures Relating to Commissioner Discipline) of the CBA. NHL Proceedings=
Pursuant to Rule 33A, Mr. Bertuzzi was immediately suspended by the League for his actions pending a hearing before Colin Campbell, scheduled to occur on March 10, 2004. The hearing was held at the NHL's offices in Toronto, and was attended by Todd Bertuzzi, Mr. Bertuzzi's agent Pat Morris, and Mr. Bertuzzi's counsel Dave Humphrey; by Brian Burke on behalf of Vancouver; by Ian Pulver and Ian Penny on behalf of the NHLPA; and by Colin Campbell, Bill Daly, NHL Executive Vice President and Chief Legal Officer, Jim Gregory, NHL Senior Vice President, Hockey Operations, and Mike Murphy, NHL Vice President, Hockey Operations, on behalf of the NHL.
Following the hearing, Mr. Campbell suspended Mr. Bertuzzi indefinitely, but for at least the Canucks' thirteen (13) remaining 2003/04 regular-season games and all of the Club's playoff games (to the extent the Club qualified for the Playoffs). Mr. Campbell's ruling also required Mr. Bertuzzi, who at the time was in the first year of a four-year contract with the Canucks, to submit to a further proceeding before me to seek reinstatement when (and in the event) he wished to play in the National Hockey League again. Mr. Bertuzzi's suspension for the balance of the 2003/04 NHL season resulted in his forfeiture of $501,926.39 in salary.
On August 31, 2004, on behalf of his client, Mr. Morris delivered a letter to Bill Daly expressing Mr. Bertuzzi's desire to meet with me in accordance with the terms of the League's earlier ruling in order to seek reinstatement. At that time, the League was engaged in collective bargaining with the NHLPA leading up to the September 15 expiration of the then-existing CBA. Mr. Morris and Mr. Daly agreed that in light of the pending labor dispute, it made little sense to proceed with a reinstatement hearing at that time. Subsequently, once the lockout had commenced, the League made clear to Mr. Bertuzzi that it was prepared to proceed with and process his petition for reinstatement only to the extent the NHLPA waived any objections to the League proceeding on this matter during the lockout. On March 30, 2005, Mr. Morris forwarded to the League the NHLPA's written confirmation that the ''NHLPA will not challenge the NHL meeting with Todd and his representatives or any decision rendered as a result of such meeting.'' I subsequently met with Mr. Bertuzzi regarding his petition for League reinstatement on Tuesday, April 26, 2005, at the League office in New York. Other Proceedings=
In addition to the discipline imposed by the League, Mr. Bertuzzi also has faced criminal charges and proceedings relating to his on-ice conduct on March 8, 2004. Subsequent to Mr. Campbell's ruling, and despite the League's efforts to persuade Crown Counsel in British Columbia that, in light of the League's already significant punishment of Mr. Bertuzzi for his actions, criminal prosecution of Mr. Bertuzzi for the incident in question was not warranted, Mr. Bertuzzi was charged criminally for assault causing bodily harm. On December 22, 2004, Mr. Bertuzzi entered a plea of guilty, and the court granted Mr. Bertuzzi a ''Conditional Discharge'' with a one-year probation order that will end as of December 21, 2005, conditioned on Mr. Bertuzzi not playing hockey or engaging in any other sporting activity involving Mr. Moore as a participant for the period of the probation, and a requirement that Mr. Bertuzzi perform 80 hours of community service.
Thereafter, on February 15, 2005, Mr. Moore filed a civil lawsuit in the Federal District Court in Colorado against Mr. Bertuzzi, Vancouver Canucks' player Brad May, Vancouver Canucks' Head Coach Marc Crawford, Vancouver Canucks' former General Manager Brian Burke, and the Vancouver Canucks organization for civil conspiracy, assault, battery, negligence and outrageous conduct, seeking compensatory damages and other relief. That action is currently pending. April 26, 2005 Hearing=
On April 26, 2005, I held a hearing in New York to consider Mr. Bertuzzi's request for reinstatement. In attendance at the hearing were: Mr. Bertuzzi, his wife Julie Bertuzzi, his agent Pat Morris, and (by telephone) his attorney Len Daust; Mr. Moore and his attorneys Tim Danson and Lee Foreman; Dave Nonis, current General Manager of the Vancouver Canucks; and (by telephone) Ian Penny on behalf of the NHLPA. Joining me at the hearing were members of the League office staff, including Bill Daly, Colin Campbell, and Julie Grand, Vice President, Deputy General Counsel. Also present on behalf of the League were NHL consulting physicians: Mark Lovell, consulting physician for the NHL/NHLPA Concussion Program, and Gary Dorshimer, team physician for the Philadelphia Flyers and Secretary/Treasurer of the NHL Team Physicians' Society. All parties were given a full opportunity to be heard and no challenges were raised to the fairness of the hearing.
At the hearing, I asked Mr. Bertuzzi and his counsel to make a presentation in support of Mr. Bertuzzi's request for reinstatement. They asserted that Mr. Bertuzzi had been sufficiently punished for his actions on March 8, 2004, and requested immediate reinstatement for the purposes of: (1) giving Mr. Bertuzzi ''closure'' and relief from the uncertainty impacting his life and career, as well as the social stigma that continues to be attached to him as a result of this incident; and (2) giving Mr. Bertuzzi the opportunity to timely sign a contract in June or July to play professional hockey for a European team in the event the then ongoing labor dispute between the NHL and the NHLPA continued into the 2005/06 season.
Mr. Morris argued that the fourteen-month suspension that Mr. Bertuzzi already had served (through April 2005) had served the purposes of: (1) deterring conduct of the same or similar nature in the future; (2) protecting other NHL players; (3) protecting the ''game'' and its reputation; and (4) serving the public interest. Specifically, Mr. Morris stated that Mr. Bertuzzi already had experienced extreme personal punishment, consistent and constant remorse, anxiety, and shame, and he further asserted that Mr. Bertuzzi would forever live with the guilt that he had injured Mr. Moore and let his own Vancouver teammates down (i.e., Vancouver very well may have had more success in the playoffs had Mr. Bertuzzi not been suspended). Mr. Morris noted that Mr. Bertuzzi had apologized to Mr. Moore, publicly in open court in connection with the criminal charges filed against him, and on a number of occasions also had attempted to apologize to Mr. Moore personally. Mr. Bertuzzi also had created a public service video regarding the incident, stressing the importance of appropriate behavior on the ice.
Mr. Morris acknowledged that Mr. Moore also had suffered personally and professionally as a result of Mr. Bertuzzi's actions, but argued that those issues could be addressed in the context of Mr. Moore's pending civil lawsuit, and argued that it would be duplicative to continue to impose League discipline on Mr. Bertuzzi relating solely to the impact of his behavior on Mr. Moore. Finally, Mr. Morris argued that, even if Mr. Bertuzzi were to be immediately reinstated in the NHL, his ''punishment'' as a result of the March 8, 2004 incident would nonetheless continue as a result of the disposition of the criminal charges (including that, as of the time of the hearing, Mr. Bertuzzi was still subject to an additional nine months of probation under the terms of his conditional discharge).
After Mr. Bertuzzi's presentation, I invited Mr. Moore, as an ''interested party,'' to present any information that he wanted me to consider in connection with my ultimate determination on Mr. Bertuzzi's request for reinstatement. Mr. Moore and his representatives asserted that the impact that the incident at issue had on Mr. Moore should be an important consideration, but not a dispositive one, in my deliberations. Mr. Danson acknowledged that Mr. Bertuzzi's apology was relevant and important, but argued that, in the circumstances of this matter, it was not ''enough.'' Mr. Danson characterized Mr. Bertuzzi's hit on Mr. Moore as vicious, mean-spirited and cowardly.
Mr. Moore testified that he could not adequately express at the hearing the impact the attack had had on his life and, instead, urged me to read the victim impact statement he prepared, as well as those that had been prepared by his parents in connection with the criminal case against Mr. Bertuzzi (which I did). Mr. Moore indicated that his medical condition had not significantly changed since the drafting of the victim impact statements approximately four (4) months earlier.
In terms of his physical condition, Mr. Moore presented evidence that his C-3 and C-4 fractures were fully healed, but testified that he continued to suffer symptoms from his concussion, including head pain and pressure, lethargy, a marked decline in a general awareness as to events and circumstances going on around him, routine memory loss, light-headedness, irritability and tenseness. He testified that while he was in rehabilitation and working out pursuant to the direction of various doctors, and was making progress, he could, as of the date of the hearing, only achieve 15-20% of the level of his pre-injury training. When asked if he was under a doctor's active care and direction, Mr. Moore testified that he ''reports back to the many doctors that have seen him.''
Mr. Moore also submitted documentary evidence of his medical condition at the hearing, including the most recent report prepared by Dr. Adrian Upton, Head, Division of Neurology, McMaster University Medical Centre, dated November 9, 2004. With respect to Mr. Moore's concussion, Dr. Upton wrote as follows:
The neurological examination was remarkably normal on October 22, 2004. However, his subjective symptoms are supported by the delayed results of his visual evoked potentials. He still has residual effects of the head injury of March 8, 2004. Lack of complete recovery at 7½ months after injury raises serious questions about his future recovery and his ability to return to competitive hockey.
Mr. Moore testified that Dr. Upton then advised that he should return for a re-examination in six (6) months. No such examination had been scheduled as of the date of the hearing.
At the hearing, Mr. Moore also testified that various doctors at the Cleveland Clinic had reviewed his medical records, but had not yet examined him in person. Mr. Moore stated that he intended to have an in-person examination performed at the Cleveland Clinic in the next eight (8) weeks.
Mr. Moore and his counsel argued that, especially in light of the then ongoing work stoppage, it would have been premature for me as of the time of the hearing to render an informed ruling on Mr. Bertuzzi's request for reinstatement, prior to my receiving more current medical information regarding Mr. Moore's injuries and his ability to return to play NHL hockey. Mr. Moore further suggested that the League should use this incident as an opportunity to send a message that there is no tolerance in NHL hockey for this type of conduct.
In response, Mr. Bertuzzi's counsel argued that the NHL should not be motivated by retributive justice, and that ''an eye for an eye'' mentality should not govern the League's judgments regarding supplementary discipline. Mr. Bertuzzi's counsel argued that the hit on Mr. Moore was not as egregious as some have suggested, and that the primary focus of the League should be on the act, not on the consequences of the act. Mr. Daust emphasized that the focus of my analysis should be on whether the purpose of NHL discipline had been satisfied. Mr. Daust also noted that all of Mr. Moore's symptoms were subjective.
Mr. Nonis testified that immediately after the incident on March 8, Mr. Bertuzzi had expressed extreme remorse and personal devastation, and had advised Mr. Nonis that the financial impact of the suspension was of far less consequence than the personal guilt and responsibility Mr. Bertuzzi felt, both for the injury caused to Mr. Moore and for the impact the incident may have had on the Canucks' season. Mr. Nonis testified that Mr. Bertuzzi's teammates and he believed that the entire community of Vancouver had forgiven Mr. Bertuzzi. In conclusion, Mr. Nonis requested that Mr. Bertuzzi immediately be reinstated.
Finally, the NHL Players' Association acknowledged for the record that the proceeding had afforded both Messrs. Bertuzzi and Moore with a full and fair opportunity to be heard, and confirmed that it had no objection to the manner in which the hearing had been conducted. Analysis and Decision=
As an initial matter, I should note there is a broad spectrum within which I can render an opinion on the appropriate length of Mr. Bertuzzi's suspension. I certainly am aware that no matter what and when I decide, there probably will be critics and supporters. However, my decision is made strictly on the basis of what I believe is the right result for the game of hockey and Mr. Bertuzzi, taking into due consideration the impact of these events on Mr. Moore.
For the reasons set forth below, it is my belief that Mr. Bertuzzi has paid a very significant price for his conduct on March 8, 2004, and that he should be reinstated immediately so that he is eligible to play as of the commencement of the 2005-06 NHL season. In reaching this determination, I note the following material considerations to which I have paid particular attention:
1. Mr. Bertuzzi's actions were deserving of an appropriately harsh sanction. From an NHL standpoint, there is no question that Mr. Bertuzzi's actions clearly went well beyond what could ever be considered acceptable behavior in the National Hockey League. Mr. Bertuzzi must be held responsible for the results of his actions, and the message must be delivered loudly and forcefully that the game will not tolerate this type of conduct. I believe that the League's response at the time of the incident and subsequently is consistent with that responsibility and delivers that message.
2. I find that the appropriate discipline to be imposed for Mr. Bertuzzi's conduct on March 8, 2004 is the suspension that has been served to date by Mr. Bertuzzi (i.e., a supplemental discipline suspension of almost seventeen (17) months, the longest in NHL history).
I anticipate that there will be those who will say that Mr. Bertuzzi's seventeen (17) month suspension is inadequate, and not proportionate to suspensions imposed on other Players for conduct that may be considered ''less severe'' than Mr. Bertuzzi's actions because of the work stoppage that wiped out the entire 2004-05 NHL season. I disagree. In light of the unusual circumstances surrounding the 2004-05 season, it is appropriate to consider not only the significant impact the suspension has had on Mr. Bertuzzi's NHL career, but also the impact that the League's suspension has had on Mr. Bertuzzi's ability to play professional hockey anywhere during this time, as well as the financial, criminal, civil and emotional consequences he has endured as a result of his conduct on March 8, 2004, as follows:
As a result of his suspension, Mr. Bertuzzi missed thirteen (13) NHL regular season games and seven (7) NHL playoff games during the 2003/04 season, resulting in his forfeiture of $501,926.39 in salary.
Both the Vancouver organization and Mr. Bertuzzi believe that Mr. Bertuzzi's suspension may very well have cost the team competitively, resulting in a less favorable 2004 playoff experience than the Club otherwise may have achieved had Mr. Bertuzzi been on the roster and playing.
As a result of his suspended status, Mr. Bertuzzi also was deemed ineligible to play hockey outside of the NHL during the period of his suspension. The practical consequences of this were that Mr. Bertuzzi could not join the numerous other NHL players who were able to participate in the 2004 World Cup of Hockey and in the 2004 and 2005 IIHF World Hockey Championships. In addition, because he was barred by the International Ice Hockey Federation from playing professional hockey in Europe during the period of his suspension, Mr. Bertuzzi was ruled ineligible to play for any European professional team during the term of the NHL work stoppage, thereby distinguishing Mr. Bertuzzi from almost 400 of his fellow NHL players who played and earned salaries in Europe. Therefore, although he sought employment in Europe, Mr. Bertuzzi's NHL suspension effectively precluded him from earning a livelihood playing hockey for the entire seventeen (17) months of his suspension. Mr. Bertuzzi testified that following his actions on March 8, 2004 and his suspension by the NHL, he experienced lost or cancelled endorsement opportunities estimated in the approximate amount of $350,000.
While the criminal charges against Mr. Bertuzzi can be conditionally discharged if he satisfies the requisite terms, Mr. Bertuzzi will always have the stigma of having pled guilty to a criminal offense related to his actions on March 8, 2004.
Mr. Bertuzzi is a defendant in a civil action filed by Mr. Moore, for which he is incurring substantial attorneys' fees in connection with his defense of such suit, and if he is found liable, may owe damages as well.
After listening to Mr. Bertuzzi and his wife Julie Bertuzzi, I have no doubt that this period of indefinite suspension has been marked by uncertainty, anxiety, stress and emotional pain for the Bertuzzi family. Other NHL players who were faced with the uncertainty caused by the seemingly indefinite nature of the work stoppage at least were able to take solace in the fact that during the period of the work stoppage they could seek employment outside of the NHL playing professional hockey, and that upon resumption of NHL play, they could immediately resume their NHL careers. Mr. Bertuzzi was not in such a position. Instead, throughout the period of Mr. Bertuzzi's seventeen (17) month suspension, the Bertuzzi family experienced constant and significant uncertainty, stress and anxiety flowing from not knowing when Mr. Bertuzzi's status would change, or if Mr. Bertuzzi would ever have the opportunity to play professional hockey again, even if a new collective bargaining agreement was negotiated.
This is the first time in Mr. Bertuzzi's career that he has been disciplined under the League's supplementary discipline procedures.
I believe that Mr. Bertuzzi is genuinely remorseful and apologetic for his actions on March 8, 2004, and the consequences that have flowed from such actions.
While I believe that Mr. Bertuzzi must be held accountable for his actions, I do not feel it is necessary or appropriate to delay the issuance of this opinion. At the time the League made the initial decision regarding the imposition of supplementary discipline on Mr. Bertuzzi, Mr. Moore's injuries had been diagnosed and determined to be serious, and likely to result in his inability to play hockey for a prolonged period of time. In addition, Mr. Moore testified at the April 26 hearing that he was in rehabilitation and working to progress to higher levels of conditioning, and may have the ability to make further, and more expedient, progress with the active input and oversight of his physicians, including the doctors at the Cleveland Clinic whom he anticipated seeing within the eight (8) weeks following the hearing. On the basis of the testimony provided at the hearing, I believe that it is fair to assume that, while perhaps not complete, Mr. Moore's recovery continues to progress.
While obviously an important and relevant factor in determining an appropriate length of suspension, Mr. Moore's physical condition and the current status of his NHL career are not, and shall not be, determinative. Even Mr. Moore acknowledged as much at our hearing in April, where he stated only that my decision at that time regarding reinstatement might be premature, given the ongoing work stoppage and the lack of complete information. Three (3) months have since passed, and I do not feel a decision at this time is premature. For these reasons, I believe it is appropriate to render my decision regarding the length of Mr. Bertuzzi's suspension.
Mr. Moore's counsel suggested that the NHL's resolution of this matter could be a defining moment for the NHL, which will be judged on how the matter is handled. I agree. Conduct such as Mr. Bertuzzi's simply has no place in the game of hockey. While the majority of Mr. Bertuzzi's suspension was served in the unusual context of an NHL work stoppage and the absence of NHL play, the impact of Mr. Bertuzzi's NHL suspension precluded his participation in professional hockey for almost seventeen (17) months, and resulted in numerous other consequences -- civil, criminal, financial and emotional -- as detailed above. While all NHL players were precluded from playing ''NHL hockey'' during the term of the NHL lockout, I am comfortable and confident that Mr. Bertuzzi suffered an even more significant impact financially and emotionally during the full term of his suspension, rendering his suspension to be an effective punishment. The seventeen (17) month suspension in this context appropriately recognizes the impact of Mr. Bertuzzi's conduct on Mr. Moore, and should send a clear and strong message that conduct of this type will never be tolerated in the National Hockey League. While some might think there needed to be a harsher punishment, I am satisfied with this result, as fair and appropriate. There is no one who can suggest that this matter has not already been dealt with in a severe and harsh manner.
While I believe it is time to move forward, I want to make clear to Mr. Bertuzzi what will be expected of him when he resumes his playing career this season: (1) As set forth in the terms of his criminal probation, Mr. Bertuzzi will not be permitted to play in any NHL game in which Mr. Moore is a player on the opposite team; and (2) Mr. Bertuzzi will be considered to be on ''probation'' for the 2005-06 NHL season. While I believe that reinstatement of Mr. Bertuzzi at this point in time is appropriate and consistent with a ''fresh start'' for the 2005-06 season, I want to make it clear that any future acts by Mr. Bertuzzi involving a review for possible supplemental discipline will require an in-person hearing and, if discipline is to be imposed, Mr. Bertuzzi should understand that it will be more severe than might otherwise be the case for similar acts committed by other NHL players. In short, Mr. Bertuzzi is on notice that he will be held strictly accountable to a higher standard than other NHL players for his on-ice conduct during the 2005-06 season. Conclusion=
Accordingly, I have determined as follows:
A total suspension of approximately seventeen (17) calendar months from the date of the incident is the appropriate sanction to impose in this case given the nature and severity of the act in question and the overall totality of circumstances. Subject to the continuing terms of the conditional discharge in Mr. Bertuzzi's criminal case and the ''probationary period'' which this decision imposes, Mr. Bertuzzi is immediately eligible for reinstatement for play in the NHL.
Gary B. Bettman
Commissioner
August 8, 2005
Cheers,
Aquaman