The National Hockey League is but one of several professional sports leagues in which both management and players have begun to recognize, and to try to control the longterm health effects of, repeated physical contact to players’ heads.  The growing concern for head injuries has been magnified in recent years by the high-profile suicide deaths of former players known as “enforcers,” whose job it is to bare-knuckle brawl with the other team’s heavyweight players (although the enforcers still have their proponents, including, at times, me), but who leave the game with longterm brain injuries and symptoms that include deep depression and drug abuse.  Past rule changes to address the problem of head injuries have included a requirement that every player wear a helmet and increased penalties when the principal point of contact is another player’s head.

A new NHL season is upon us, and with it comes another slew of changes to the rules of play.  One such rule change will require a player who has lost his helmet to retrieve it, allowing him a “reasonable” opportunity to make a play before a minor penalty is assessed.  That word, “reasonable,” sparked some discussion between NHL Network Radio‘s Steve Kouleas and Scott Laughlin today on their show, the Power Play, including Kouleas’s exasperated question, “What does ‘reasonable’ mean?!”

“Reasonable” is a term of art in Anglo-American common law that refers to an objective view of a particular set of facts.  In tort law, for example, whether a person tortiously injured another person in an actionable way depends upon whether, in the view of a jury, members of which have no personal stake in the answer to the question, the alleged tortfeasor acted with ordinary prudence under the circumstances.  (For further discussion on the reasonable person standard, check out More Perfect’s “Mr. Graham and the Reasonable Man” podcast episode, in which the hosts explore how the objective standard applies in certain civil rights cases.)  “Reasonableness” in hockey thus requires that a player act as a person of ordinary prudence would act under the circumstances, as judged by a neutral third party, the referee.

The hypothetical that Kouleas and Laughlin considered was whether Chicago Blackhawks forward Patrick Kane could pursue a puck in front of him after absorbing a hit from Los Angeles Kings defenseman Drew Doughty, and Kane’s helmet flew off.  The answer is, “it depends.”  Specifically, it depends on where they and the other players are on the ice, how likely it is that Kane can safely make a play, where the other players are, how the play is developing, and a whole host of other factors.  If Kane is killing a penalty and clearing the puck from the defensive zone when Doughty hits him, it is probably not reasonable for Kane to chase the play up ice with everyone else.  A player of ordinary prudence under those circumstances would not leave his helmet behind to chase the play when there is no risk of the play coming back into the defensive zone.  On the other hand, if Kane was carrying the puck up ice and entering the offensive zone at the blue line, Doughty hit him, and speedy Kane had a chance to get behind Doughty for a one-on-one scoring chance against aging Kings netminder Jonathan Quick, a player of ordinary prudence under those circumstances would probably turn on the afterburners and try to put his team ahead, resulting in no penalty under the new rule.

Referees have to make split-second decisions in a hockey game, and their discretion to judge whether something is “reasonable” under the circumstances is largely unbounded.  Laughlin commented that interpreting the rule leaves a lot of room for the “subjectivity” of individual referees.  That is true in the common parlance of the word “subjective,” but, in law, a “subjective” interpretation and application of the rule would hinge on the players’ view of the facts–the views of the people who have a stake in the outcome of the call.  By definition, though, the reasonableness standard necessarily means that all calls under the new rule will be made “objectively.”

Few players or fans will see it that way, however, so players and fans will undoubtedly be frustrated by how the new rule is applied.  This is especially true of the players, who also make split-second decisions during a hockey game, and want some sense of predictability about whether their play will result in a penalty.  In any event, hopefully the rate of longterm brain injuries in hockey will continue to decline.