By: Alex Dourian

On January 30, 2021, Calgary Flames forward Dillon Dube landed a dangerous hit to the head of Montreal Canadiens forward Jesperi Kotkaniemi.[1]  Kotkaniemi was visibly shaken up and briefly left the game.[2]  The morning after, NHL player agent Allan Walsh criticized the NHL’s handling of player safety on Twitter and advocated for a strict liability rule banning all hits to the head as a way of reducing brain injuries to players in the long term.[3] 

Dube is not the only player this season to catch heat for delivering a headshot to an unsuspecting player.[4]  Washington Capitals forward Tom Wilson has been the source of much debate throughout the years regarding headshots and player safety in the NHL.[5]  On March 5, 2021, he delivered a bodycheck to Boston Bruins defenseman Brandon Carlo, knocking him out of the game.[6]  While the call on the ice was that the bodycheck was not a penalty, the NHL Department of Player Safety (“DPS”) determined after the fact that the hit warranted a seven-game suspension.[7]  It reasoned so because of the violent nature of Wilson’s bodycheck, and that at the time of contact, Carlo was in a defenseless position.[8]  DPS further elaborated that it was the “totality of the circumstances” which caused the play to warrant discipline from the league; DPS brought into consideration the direct and significant contact with Carlo’s head, Wilson’s substantial disciplinary record, and the fact that Carlo was injured and removed from the game as the combining factors that brought DPS to its conclusion.[9] 

Rule 48 of the NHL Rulebook concerns illegal checks to the head.[10]  It states, in pertinent part, that “[a] hit resulting in contact with an opponent’s head where the head was the main point of contact and such contact to the head was avoidable is not permitted.”[11]  There are numerous considerations referees may take into account when determining whether contact with the head was avoidable, such as poor timing or angling, whether the opponent put himself in a vulnerable position before the hit, and whether the opponent substantially changed the position of his body or head immediately preceding the hit.[12]  If a player is suspended for on-ice conduct, he forfeits his salary for the time in which he is suspended.[13]  Many hockey pundits have advocated that giving the disciplinary authorities (e.g., referees and DPS) discretion to consider the factors relevant in Rule 48 has resulted in inconsistency in enforcing the rule and led to gray areas when it comes to incidental versus purposeful head contact.[14]  These pundits have argued that the NHL should do away with the discretionary leeway when it comes to headshots and instead implement a strict liability standard, banning all hits to the head.[15]  Such a standard would eliminate any gray area in how headshots are penalized and would create much-needed consistency in how NHL officials referee this area of the game.[16]  It would put players on notice before games and give them ample opportunity to adjust.[17]

Generally speaking, strict liability is a heightened negligence standard that imposes liability upon someone for a tortious act irrespective of that person’s intent or mental state at the time of the act.[18]  Some legal commentators argue that negligence standards can be flawed because they attempt to deter actions that an actor had no intention or knowledge of doing, which leads to the question:  how can our society impose penalties for behavior that is completely unintentional or unavoidable?[19]  Opponents of a uniform ban to head contact in the NHL advance such an argument due to the game’s inherent risks associated with the pace of play and differences in player size that may make head contact wholly unavoidable or unintentional.[20]  In the past, courts have ruled that in the professional sports context, acts that otherwise would violate society’s assault, battery, or negligence standards are nonetheless permitted if they fall within the customary practices of the game.[21]  By contrast, courts will treat those acts which patently fall outside the permissible scope of violent activity differently.[22]  Bodychecking is undoubtedly a customary practice of ice hockey and is woven into the fabric of the game.[23]  There are, however, inherent risks that any player must assume when it comes to bodychecking, namely the risk of being injured due to such physical contact.[24]             

A strict liability standard would not come without consequences, primarily with regards to salary forfeiture implications upon player suspension.  A uniform rule banning all head contact would remove all discretion NHL officiators have in dispensing penalties for such contact, including the ability to consider the violating player’s intent and any other extenuating factors, such as the receiving player’s position and movements before the hit.[25]  While such a rule could arguably make players more cautious of their conduct and movements on the ice, thus decreasing the occurrence of injury, the reality is that the purpose of the strict liability rule, to eliminate head contact, would be close to impossible to achieve in a sport where players, all differing in size, ice skate within an enclosed area at speeds of up to twenty-five miles per hour.[26]  A uniform ban would arguably increase the number of suspensions the League must hand out, which would cause more players to forfeit salary under the Collective Bargaining Agreement.  Therefore, the League and the NHL Players’ Association must conduct a balancing test, weighing the benefits of a strict liability rule in reducing head contact rates versus the potentially enormous losses in salary forfeiture players could face.

[1] Matt Drake, Dillon Dube’s hit on Jesperi Kotkaniemi should not go unpunished, Eyes On The Prize (Jan. 31, 2021),

[2] Id.

[3] Allan Walsh (@walsha), Twitter (Jan. 31, 2021, 11:30 AM),

[4] See NHL Suspension/Fine Tracker 2020-21, Scouting The Refs, (outlining the various fines and suspensions handed out to NHL players throughout the 2020-21 season to date). 

[5] See Shanna McCarriston, Bruins’ Brandon Carlo helped off ice after headshot by Capitals’ Tom Wilson, Boston players respond to hit, CBS Sports (Mar. 5, 2021), (noting that Wilson has been suspended four times in his career, including a twenty-game suspension handed to him in October 2018 for a check to the head of St. Louis Blues forward Oskar Sundqvist during a pre-season game).

[6] Id.

[7] See, Wilson suspended seven games for Capitals by NHL Player Safety, NHL (Mar. 7, 2021),

[8] Id.

[9] See id. (noting that this is Wilson’s fifth suspension since he began his NHL career).

[10] National Hockey League, Official Rules 2020-2021 81-82 (2020).

[11] Id. at 81.

[12] Id.

[13] See NHLPA, Collective Bargaining Agreement Between the National Hockey League and National Hockey League Players’ Association Art. 18.15 (2013) [hereinafter CBA] (explaining the different calculations in salary forfeiture for “first time” offenders versus “repeat” offenders; if a player is suspended twice within an eighteen-month period, he is considered a repeat offender).

[14] See Matt Larkin, Why There’s Only One Way to Eliminate Headshots from the NHL, Sports Illustrated (Feb. 8, 2021), (explaining that NHL officials cannot penalize hits to the head that cause injury but are a result of incidental contact); Peter Hassett, Ban headshots, Russian Machine Never Breaks (Mar. 8, 2021), (“A rule change would be constant and predictable where supplemental discipline is neither, and that’s the only way the league can change behavior to reduce injury.”); see also Tom Dougherty, Eric Lindros’ Drastic Rule Change Would Make Hockey Safer, But Is It Too Extreme?, NBC Philadelphia (Aug. 19, 2018), (noting that headshots are penalized more seriously, but inconsistency in enforcement remains an issue).

[15] See Larkin, supra note 14 (arguing that the way to reduce injury-causing headshots would be to amend Rule 48 to ban all forms of head contact irrespective of player intent).

[16] See Hassett, supra note 14 (advocating for the NHL to amend Rule 48 to simply refer to an illegal check to the head as “[a] hit resulting in contact with an opponent’s head” with no reference to player intent or any other extenuating circumstances).

[17] Id.

[18] Strict Liability, Legal Info. Inst., (last visited Apr. 3, 2021).

[19] See Garrath Williams, Taking Responsibility for Negligence and Non-Negligence, 14 Crim. L. & Phil. 113, 114-15 (2019).

[20] See Bettman: Can’t ban all hits to head in hockey, ESPN (May 1, 2019), (quoting NHL Commissioner Gary Bettman as stating that such a ban on head contact would mean larger players would be penalized when inevitable head contact occurs with smaller players); Michael Russo, An evening with George Parros inside the NHL’s Department of Player Safety, The Athletic (Mar. 26, 2018), (quoting George Parros, who leads the NHL DPS, as saying that hockey “[is] a fast game played by big, strong, physical people.”).

[21] See, e.g., Hackbart v. Cincinnati Bengals, 601 F.2d 516, 520 (10th Cir. 1979) (“[S]ubjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent.”); Regina v. McSorley, 2000 CarswellBC 3297 (B.C. Prov. Ct.)  at ¶ 14 (quoting Regina v. Watson, 1975 CarswellOnt 1059 (Ont. Prov. Ct.)  at ¶ 19) (acknowledging that hockey is a “fast, vigorous, competitive game involving much body contact,” and that if such body contact occurred outside of the hockey rink, it would likely constitute assault, but when one engages in the sport, he must accept and consent to the fact that such “assaults” may occur).

[22] See McSorley, 2000 CarswellBC 3927 at ¶ 108 (finding former NHL player Marty McSorley guilty of assault for intentionally slashing Donald Brashear in the head with his stick).

[23] See Rick Trimble & Ken Biedzynski, Body checks and stick checks explained, Hockey Player (Nov. 9, 2001), (explaining how checking is a critical aspect of any player’s game).

[24] See Jim Tomlinson, Inherent Risks in Hockey: Recent Developments in the Law, McCague Borlack (last visited Apr. 3, 2021), (discussing various cases where trial court judges have accepted hockey is an inherently rough game, but that participants should take all reasonable steps to avoid injury).

[25] See Hassett, supra note 14 (arguing the discretion the rulebook gives officials permits subjectivity when it comes to calling penalties for head contact, and that a uniform ban would eliminate that subjectivity).

[26] See Simon, How Fast Can Ice Hockey Players Skate?, Brave Stick Hockey (last updated Feb. 8, 2020),; Jared Clinton, NHL penalizing all head contact would result in ‘no more bodychecking,’ says Bettman, Sports Illustrated (May 2, 2019), (citing Gary Bettman’s testimony in front of Canada’s House of Commons that head contact is sometimes unavoidable due to differing heights, weights, and skillsets of the League’s players).

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