CHAUDHRI: Should hockey players acquitted in sex assault case get their NHL jobs back?

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Not guilty is not the equivalent of innocence.

In a decision that has rocked the nation, Carter Hart, Alex Formenton, Dillon Dube, Michael McLeod and Cal Foote were collectively acquitted last week on all sexual assault charges stemming from an incident dating back to June 2018.

Superior Court Justice Maria Carroccia found the evidence of the alleged victim, E.M., was not credible or reliable.

While my Toronto Sun colleagues have gone to great lengths to provide play-by-play analysis of the trial, dissect the evidence, and report the decision, as a civil litigator and employment lawyer, my focus is on the path forward for these newly acquitted players.

Is there a professional career for any of them to return to?

Four of the five men charged were active NHL players at the time of their arrests in 2024. Each was granted a leave from their clubs after they were criminally charged.

Following the decision this week, the NHL said the five men would be ineligible to play while the league reviews the findings. The NHL described the evidence at trial to be “disturbing.”

The NHLPA, however, argues the players should have the opportunity to return to work and that the NHL’s position runs afoul of the terms of their collective bargaining agreement.

My cursory review of the collective agreement confirms that the NHL commissioner has broad disciplinary authority for off-ice conduct that is “detrimental to or against the welfare of the league or the game of hockey.” This can include the termination of a player’s contract.

The collective agreement even confirms that the commissioner can apply these powers whether the criminal charges result in a conviction or not. So, theoretically, the league would be within its right to deny the five players a chance to return to the ice.

But there’s a major wrinkle.

Before initiating discipline for off-ice conduct, the collective agreement also requires the NHL to have conducted an investigation into the allegations. This is where things may fall apart for the league.

E.M. sued Hockey Canada, among others, for $3.55 million in 2022. A financial settlement was paid out to E.M. months later by Hockey Canada via a “reserve fund.”

When the payment to E.M. was uncovered by the media, Hockey Canada issued a statement in 2022 stating, in part, “We know we have not done enough to address the actions of some members of the 2018 national junior team or to end the culture of toxic behaviour within our game.”

Only after settling the civil suit with E.M. and being exposed did Hockey Canada respond to the public outcry by initiating an investigation. How seriously would an organization investigate a case that it already settled and involved allegations that were four years old?

A core principle of the rule of law is procedural fairness. If in one’s employment a person may be subject to discipline, then they are entitled to know the allegations against them and be provided the opportunity to respond. There was no record of the players being investigated by the league prior to the E.M. civil case being settled. To open an investigation after the settlement occurred denied the players an opportunity to challenge the allegations with their own evidence.

This very fact alone could be a strong ground of appeal if they are not allowed back into the league.

It is no question that the evidence in this case supports a dysfunctional, power-bro culture within the world of hockey. The NHL is right when it says the allegations were “disturbing” and the behaviour at issue was “unacceptable.” But why did the NHL ignore said allegations when they lay at the league’s very doorstep?

To make a statement with any thread of conviction only when the world is watching isn’t just gratuitous, it’s plain wrong. It is much too late for the NHL to virtue signal in this case. And perhaps it also is too late to reasonably deny these five players a chance to return to their careers.

Botched internal investigations do not mean there was no wrongdoing. But they can dull the knife when it comes to consequences.

Perhaps through the gaping holes in the investigation of this case the players will be welcomed back into the league. But industries rise and fall on public perception. The NHL’s future is only as strong as its supporters.

We should know soon if now will be the time of reckoning or a return to the status quo.

Have a workplace question? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

The content of this article is general information only and is not legal advice.