The Debate Rages but Has the NHL Already Banned Fighting Without Knowing It? Rule 48 and Unintended Consequences

In the NHL rulebook, fighting is the subject of Rule 46. Managing fighting is actually so important to the NHL that Rule 46 has 22 subsections. Fighting is clearly against the rules of hockey in the same way that slashing, boarding, high-sticking and interference are against the rules. If players do these things, they go to the penalty box. But lately with the tragic deaths of a few NHL tough guys and some major injuries around the league, there has been a lot of talk about removing fighting from the game entirely.

But is it possible that the NHL has already legislated against fighting completely inadvertently?



It's a well-known fact that legislation will oftentimes have unintended consequences that the drafters never anticipated. Sometimes they are good, like for instance when Congress tried to ease the difficulties of soldiers demobilizing after the Second World War and re-entering society by giving them $20 a week in unemployment benefits and somehow ended up with millions of soldiers getting free college educations, expanding the middle class, and enabling the American economic boom of the mid-Twentieth Century. And sometimes, the unintended consequences are ridiculously stupid, like when the U.S. made marijuana illegal to protect the paper industry, and today has by far the largest per capita prison population in the world.

That brings me to the NHL's Rule 48.

In response to the myriad debilitating concussions that were shortening the careers of too many NHL players and negatively impacting their longterm health, the NHL banned hits to the head with Rule 48. The language of 48.1 reads:

48.1 Illegal Check to the Head – A hit resulting in contact with an opponent's head where the head is targeted and the principal point of contact is not permitted. However, in determining whether such a hit should have been permitted, the circumstances of the hit, including whether the opponent put himself in a vulnerable position immediately prior to or simultaneously with the hit or the head contact on an otherwise legal body check was avoidable, can be considered.

Notice that the banned action is a "hit resulting in contact with an opponent's head where the head is targeted and the principal point of contact." Isn't that what fighting is? Every NHL fight is a series of hits targeting an opponent's head over and over again.

It is true that the title of the rule states that we are dealing with "checks" so obviously Rule 48 is only dealing with bodychecks, right.? Not so fast. There are all kinds of checks in hockey that are not bodychecks. There are poke-checks, stick checks, and cross-checks, any of which could result in a hit to the head, but none of which appear to be contemplated by the rule. Besides, the text of the rule bars intentionally hitting an opponent in the head. Hitting and checking are not synonymous. Hitting and punching are though.

Further, since there is already a rule against fighting, it might seem redundant to consider Rule 48 as also covering the same subject. I counter this argument by noting that there is a rule against boarding in the NHL rulebook (Rule 41), but Rule 48 has significant overlap with it. The same goes for charging, checking from behind, and elbowing.

Rule 48 does include language about the opponent putting himself into "a vulnerable position immediately prior to or simultaneously with the hit or the head contact" and one might argue that any fighter is putting himself into a vulnerable position. That is a reasonable argument to make, but not all fights occur between willing combatants and just because you're fighting doesn't mean you are necessarily vulnerable, which is to say, caught unawares.

What would it mean for Rule 48 to cover fights as well as dirty body checks?

First and foremost, any player who fights in an NHL game would be subject to an extra two-minute minor under Rule 48.2 for violating the rule. Secondly, under Rule 48.6, the referees would have at their discretion the authority to hand out match penalties if they judge that "the player attempted to or deliberately injured his opponent with an illegal check to the head." Finally, any player to receive two game misconducts under the rule would be suspended for his team's next game with further supplementary discipline available at the Commissioner's discretion.

Based on the text of Rule 48, I personally believe the NHL has already deemed fighting to be an illegal hit to the head that should subject players to further penalties. What do you think?