Legal experts question conclusions of NHLPA report on Kyle Beach

When the law firm of Cozen O’Connor released their report looking into the NHLPA’s response to the 2010 sexual assault of NHL player Kyle Beach, media and fans immediately reacted.

During the 2009-10 season, Beach was sexually assaulted by Chicago Blackhawks video coach Brad Aldrich.

The independent report concluded “Beach’s warnings about Aldrich were not addressed on account of miscommunication and misunderstanding, rather than any individual or systemic failure.” The report concluded that “any individual wrongdoing or institutional failures of policy or procedure” by NHLPA executive director Donald Fehr, NHLPA personnel, or the program responding to Beach’s report could not be identified.

As Sportsnet's Elliotte Friedman rebutted in response to the findings, however, “I’m not a lawyer. I don’t know the full extent of reporting rules. But… I don’t understand how anyone can claim there wasn’t any 'systemic failure' here.” While Friedman is not a legal expert, his concern with the findings was echoed by fans, media and legal experts.

One concern was the inconsistency in recollections from all participants. Conflicting statements were received from Beach’s agent Ross Gurney, who stated he used clear language when reporting Aldrich to Fehr, labelling Aldrich as a sexually violent individual. Fehr claimed he did not recall Gurney reporting the issue to him.

According to Mark Conrad, who is an associate professor of law and ethics and the director of the Sports Business Concentration at the Gabelli School of Business at Fordham University, such inconsistencies can be expected given a decade has passed since the events.

“I would say that the investigation seemed thorough, and the report noted that it was difficult to determine events of over a decade ago with absolute clarity,” Conrad wrote in an email. Conrad also stated it is difficult to claim institutional failure due to the fact insufficient evidence survived. The loss of evidence, according to Conrad, was likely due to time passed and “the lack of writing,” as many of the conversations at the time occurred via phone, not email.

Despite the inconsistent reports and mixed recollections, Cozen O’Connor made clear conclusions.

According to Martine Dennie, an assistant professor at the Robson Hall Faculty of Law at the University of Manitoba, it’s difficult to see how such conclusions clearing the NHLPA of institutional failure could exist since the conclusions are based largely on “a lack of recollection of the conversations a decade ago.”

“I’m not convinced that any conclusion can be reached based on the evidence they have,” Dennie said via email. “The report indicates that 'it is impossible to conclude with any certainty exactly what was reported and to whom it was reported,' yet somehow they still conclude there was no wrongdoing and that it was simply miscommunication.”

Dennie does not rule out the findings, but believes the evidence provided neither proves nor disproves individual wrongdoing. Similarly, without a clear understanding of what communication existed between the involved parties and how that information was used, the presence of institutional failure cannot be determined or ruled out.

Still, some aspects within the report, specifically the shift of responsibility to the victims — Beach and the unnamed Black Ace 1 — concerned Dennie.

Beach was interviewed extensively for both the previously published Jenner Report on the events, and by TSN reporter Rick Westhead, yet the report claims the “refusal to meet” on the part of the victims “seriously hampered” the findings.

“On numerous accounts, the report makes references to Beach and Black Ace 1 refusing to be interviewed without providing any reason why the victims might not want to participate,” said Dennie, who iterated that victims in cases of sexual abuse often have reasons for wishing to not be repeatedly interviewed.

“It certainly reads as blaming them for the lack and/or limitation of evidence. Interviewing victims means forcing them to relive the abuse, so it’s not surprising the players don’t want to be interviewed.”

In other sections of the report, Cozen O’Connor discusses the on-ice success of the Blackhawks, who won the Stanley Cup in 2010, the season during which the abuse of Beach and Black Ace 1 occurred. It also repeatedly touts the qualifications of Fehr, a lawyer himself who graduated from the University of Missouri-Kansas City School of Law.

“To make matters worse, the report also praises the Blackhawks for having a 'successful' season in 2010. The language throughout the report is rather disturbing in this sense. This coupled with the constant reminders that Fehr is a trained lawyer seems to highlight the power relations between the head of the union and a player who is a 'non-member.'"

The fact that Beach is no longer a member of the NHLPA is of concern related to the portion of the independent review which was not made public. According to the NHLPA, “Cozen provided the board with several recommendations outlining new processes and resources the NHLPA should consider implementing” to ensure similar issues do not occur in future reporting of abuse and assault.

While Conrad believes the review was thorough, he does see the omission of these recommendations from the public announcement as a downfall.

“The key was the failure to release the recommendations made to the NHLPA's general counsel,” he wrote. “I think that would have been important and a way to gauge the thoughts of the law firm preparing the report.”

According to Conrad, the attention sexual abuse of athletes receives today compared to 2010 and a potential lack of procedures being “clearly delineated for dealing with these issues” should also be considered when examining the complexity of this process. Conrad, however, believes much more needs to be done by the NHLPA. “It would behoove the NHLPA to be more proactive about such matters, if it has not been already.”

It’s a perspective echoed by Dennie. Although the NHLPA appears to be using Beach’s status as a “former employee of an NHL organization unrelated to the union” as grounds for avoiding redress for Beach, or Aldrich’s subsequent victims, the need to act has never been more clear. That action includes releasing and acting upon the sequestered recommendations put forth by Cozen O’Connor to avoid future coverups.

“It all seems incredibly consistent with hockey culture in that sexual abuse gets covered up. The Blackhawks organization chose the Stanley Cup playoffs over caring for Beach at the time of the abuse (as alleged by Beach in his interview with Rick Westhead),” wrote Dennie.

“It remains in the best interest of the bargaining unit to act on these allegations,” Dennie continued. “This is perhaps why they have made recommendations on new processes and resources that the NHLPA should implement. They can claim they don’t owe Beach anything as a 'non-member' of the union, but they recognize that such allegations are serious, and they should do something to protect their 'actual' members moving forward.”

As Friedman concluded in his critique of the results, “It’s not good enough to shrug your shoulders and say, 'miscommunication and misunderstanding,' rather than any… systemic failure.”

When the NHLPA releases Cozen O’Connor’s recommendations for the future, perhaps the systemic processes and mechanisms for protecting players, and avoiding “miscommunication” and “misunderstanding” will become clear.

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