In “Ensuring Fair Process For Players In Sexual Assault Claims – The Jake Virtanen NHL Case” Friday, 26 August 2022 by Kenneth Wm Thornicroft posted on lawinsport.com, found troubling aspects of the case and made recommendations from the way it all was handled.
In the author’s view, there are several troubling aspects about this situation.
First, there is the abject asymmetry regarding the respective privacy rights of the two individuals involved. The complainant’s identity has been fully shielded throughout this matter11 (and perhaps rightly so), but Virtanen – because he is a high-profile athlete – was subjected to intense publicity. An ordinary individual would not have faced this degree of public exposure. The police do not regularly issue press releases every time a sexual assault investigation is commenced, or when a sexual assault charge is filed.
The complainant was legally entitled to have her identity cloaked in both the criminal and civil proceedings, but Virtanen had no such presumptive legal protection. It could be argued that public figures, such as professional athletes, have a lesser right to privacy, particularly given that they often trade on their public image through endorsements, sponsorships, and other revenue opportunities. On the other hand, that latter circumstance means that when a professional athlete’s image is tarnished, the adverse financial repercussions may be much greater compared to individuals who are not in the public eye. That may be a tolerable situation provided there is some measure of due process given to the athlete. In this case, as has occurred in others, the mere allegation of impropriety triggered a cascading series of adverse consequences for the athlete.
The second concern arises from the team’s and NHL’s responses. None of Virtanen, the Vancouver Canucks, or the NHL has any control over the criminal or civil justice systems. However, both the team and the league could have (and, I would argue, should have) proceeded with a greater concern for the player’s privacy and due process interests. The Canucks placed Virtanen on leave as soon as he was identified in social media, and without any sort of prior investigation – the presumption of innocence was not, apparently, top of mind. Professional sports organizations must be mindful of the present climate, where there is heightened awareness of sexual assaults, and a heightened concern for sexual assault victims. On the other hand, summary termination of a player’s contract should not be a public relations exercise, or an opportunity to engage in virtue signalling. The tenor of the press release issued at the time, coupled with the player’s summary suspension, implied that the team was treating the allegation as presumptively valid, even though no effort had yet been taken the verify it. Although the Canucks stated in its press release that it had “engaged external expertise to assist in an independent investigation”12, there is absolutely nothing in the public record confirming that a proper independent investigation was ever conducted.13 At the same time, the NHL merely stated that it was “monitoring the situation”, and it never conducted its own, or commissioned an independent, investigation14. When Virtanen’s contract was bought out, neither the Canucks nor the NHL issued a statement confirming that the sexual assault allegation was ever independently (or even internally) investigated, let alone substantiated.
Third, the team’s and league’s conduct in this matter demonstrate a complete absence of due process. These events also highlight the fact that the player was left without any effective remedy. In terminating Virtanen’s contract, the team had two options – the buy-out (which required the team to pay Virtanen certain compensation, and which had salary cap implications), or terminate him under the “morals clause” in the standard player’s contract15 (in which case, the team would not have had any financial obligation to the player). The team chose the buy-out option and thus, as long as the team complied with the CBA (as it did), Virtanen had no recourse. Had the team triggered the morals clause, Virtanen’s termination would have been arbitrable under the CBA. In other words, the team chose the costly, but expedient, option that left the player with no recourse.
As for recommendations in handling cases such as this the author suggests:
Lessons For Clubs, Leagues & Players’ Associations
There are lessons to be learned here.
Since precipitate termination of the player’s contract – using the buy-out option – based solely on an unsubstantiated allegation, is currently permissible,16 the players’ association should in the author’s view bargain for appropriate due process protections to be included in the next CBA. At a minimum, adverse sanctions that are based on unproven allegations should not be permitted. The league should ensure that such allegations are thoroughly investigated by a third-party neutral before sanctions are imposed. The player must have the right to be heard and to be legally represented during this investigation, and to receive all evidence gathered. Players should not be suspended pending the conclusion of the investigation absent very strong presumptive evidence of guilt, or a judicial determination of guilt (this would be a disciplinary suspension, subject to review under the CBA). Additionally, the team and the league should, in the author’s view, refrain from making any public comment that presupposes the player actually committed the alleged misconduct in question. Unless and until an allegation has been investigated and determined to be well-founded, the team should restrict its public comments to simply confirming that an investigation is underway.
If the team wishes to suspend a player pending the completion of an investigation, notwithstanding the absence of a determination of misconduct, all reasonable efforts must be made to ensure that the investigation is conducted professionally and promptly. Insofar as suspensions pending an investigation are concerned, it must be stressed that such suspensions are administrative, not disciplinary, in nature. As such, the following principles should apply:
- the suspension should only be imposed where necessary to protect the legitimate business interests of the team;
- the team must proceed in good faith, and act fairly in deciding to impose an administrative suspension;
- the player’s suspension must be imposed for a relatively short period, preferably for a maximum time period fixed in the CBA; and iv)
- the suspension must be with pay.17
These administrative suspensions must be reviewable, at the player’s option, by a neutral arbiter.
Although most sexual assault complaints may be legitimate, that is not always the case.18 Since allegations of sexual assault against an NHL player are bound to produce extensive (and often salacious) reporting, both the team and the league must be particularly circumspect to ensure that players receive all appropriate due process protections.