2015-08-19 - (Burke, Brian) Final REDACTED - Condensed

Confidential Pursuant to Protective Order - Deposition of Brian Burke - 8/19/2015
In Re: National Hockey League Players' Concussion Injury Litigation
Page 1
1 UNITED STATES DISTRICT COURT
2 DISTRICT OF MINNESOTA
3
4 IN RE: NATIONAL HOCKEY
5 LEAGUE PLAYERS' CONCUSSION MDL No. 14-2551
(SRN/JSM)
6 INJURY LITIGATION
7 -------------------------------
8
9
10 CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER
11 VIDEOTAPED
12 DEPOSITION OF BRIAN BURKE
13 New York, New York
14 Wednesday, August 19, 2015
15
16
17
18
19
20
21
22
23
24 Reported by:
FRANCIS X. FREDERICK, CSR, RPR, RMR
25
Benchmark Reporting Agency

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Page 2 Page 4
1 A P P E A R A N C E S: 1 ----------------- I N D E X ------------------
2 2 WITNESS EXAMINATION BY PAGE
3 ZIMMERMAN REED 3 BRIAN BURKE MR. GUDMUNDSON 12
4 Attorneys for Plaintiffs 4
5 1100 IDS Center 5
6 80 South 8th Street 6
7 Minneapolis, Minnesota 55402 7
8 BY: BRIAN C. GUDMUNDSON, ESQ. 8
9 DANE DEKREY 9
10 - and - 10 ------------------ EXHIBITS ------------------
11 ZIMMERMAN REED 11 BURKE FOR ID.
12 14646 North Kierland Boulevard - Suite 145 12 Exhibit 1
13 Scottsdale, Arizona 85254 13 Minutes of the Meeting of the
14 BY: HART L. ROBINOVITCH, ESQ. 14 General Managers Held at the
15 15 Westin Hotel, Renaissance Center,
16 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 16 Detroit, Michigan June 5, 1997
17 Attorneys for the National Hockey League 17 bearing production numbers
18 and the Witness 18 NHL0218166 through NHL0218172........... 68
19 Four Times Square 19 Exhibit 2
20 New York, New York 10036 20 memorandum dated May 19, 1998
21 BY: SHEPARD GOLDFEIN, ESQ. 21 bearing production
22 GREG A. CRAPANZANO, ESQ. 22 number NHL1353650....................... 78
23 23 Exhibit 3
24 24 e-mail dated 2/28/2007
25 25 bearing production number NHL1656311.... 84
Page 3 Page 5
1 A P P E A R A N C E S: (Cont'd.) 1 ------------------ EXHIBITS ------------------
2 2 BURKE FOR ID.
3 ALSO PRESENT: 3 Exhibit 4
4 STEPHEN J. SHAMIE, ESQ. Hick Morley 4 Minutes of the Meeting of the
5 MANUEL GARCIA, Certified Legal Video Specialist 5 General Managers Boca Beach
6 6 Club - Boca Raton, Florida
7 7 March 8-10, 2010 bearing
8 8 production numbers NHL0143203
9 9 through NHL0143225...................... 87
10 10 Exhibit 5
11 11 e-mail dated 5/21/2010
12 12 bearing production
13 13 number NHL1632649....................... 122
14 14 Exhibit 6
15 15 Concussion in the National
16 16 Hockey League NHL General
17 17 Managers' Meeting March 2011
18 18 bearing production numbers
19 19 NHL0200272 through NHL0200366........... 135
20 20 Exhibit 7
21 21 Concussion Report General
22 22 Managers March 12-13, 2012
23 23 bearing production numbers
24 24 NHL0035749 through NHL0035788........... 145
25 25

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1 ------------------ EXHIBITS ------------------ 1 ------------------ EXHIBITS ------------------
2 BURKE FOR ID. 2 BURKE FOR ID.
3 Exhibit 8 3 Exhibit 19
4 e-mail dated 3/13/2010 4 e-mail dated 1/6/2012
5 bearing production numbers 5 bearing production numbers
6 NHL2340979 through NHL2340980........... 156 6 NHL0094230 through NHL0094232........... 279
8 General Notes from General 8 e-mail dated 10/31/2013
9 Managers Meeting - June 4, 2007 9 bearing production numbers
10 bearing production numbers 10 NHL0108424 through NHL0108428........... 289
11 NHL0232747 through NHL0232761........... 163 11 Exhibit 21
12 Exhibit 10 12 memorandum dated September 19,
13 e-mail dated 10/24/2007 13 1996 bearing production numbers
14 bearing production numbers 14 NHL0225277 through NHL0225293........... 302
15 NHL0029952 through NHL0029957........... 173 15 Exhibit 22
16 Exhibit 11 16 e-mail dated 8/12/2014
17 Hits to the Head Analysis 17 bearing production number NHL0201235.... 309
18 General Managers' Meeting 18 Exhibit 23
19 March 8, 2010 bearing production 19 letter dated December 11, 1997
20 numbers NHL0120323 20 bearing production numbers
21 through NHL0120384...................... 188 21 NHL1353452 through NHL1353453........... 316
22 Exhibit 12 22
23 document bearing production 23
24 numbers NHL0483807 through NHL0483808... 203 24
25 25
Page 7 Page 9
1 ------------------ EXHIBITS ------------------ 1 ------------------ EXHIBITS ------------------
2 BURKE FOR ID. 2 BURKE FOR ID.
4 document bearing production 4 memorandum dated March 19,
5 numbers NHL0290825 through NHL0290826... 212 5 2010 bearing production
6 Exhibit 14 6 numbers NHL-BOG-0007393
7 e-mail dated 4/13/2010 7 through NHL-BOG-0007398................. 321
8 bearing production numbers 8 Exhibit 25
9 NHL0032626 through NHL0032630........... 220 9 Minutes of the Meeting of the
10 Exhibit 15 10 General Managers The Ritz Carlton,
11 letter dated November 19, 11 Philadelphia - Philadelphia,
12 1993 bearing production 12 Pennsylvania June 2, 2010 bearing
13 numbers NHL1702605 through NHL172611.... 228 13 production numbers NHL0139568
14 Exhibit 16 14 through NHL0139583...................... 329
15 e-mail dated 1/12/2009 15 Exhibit 26
16 bearing production number NHL0031371.... 235 16 Minutes of the Meeting of the
17 Exhibit 17 17 Competition Committee The
18 document bearing production 18 National Hockey League Offices,
19 numbers NHL1293533 19 Toronto, Ontario, Canada June 18,
20 through NHL1293534...................... 244 20 2010 bearing production numbers
21 Exhibit 18 21 NHL0240133 through NHL0240150.......... 341
22 Fighting Analysis General 22 Exhibit 27
23 Managers' Meeting March 9, 2009 23 e-mail dated 10/1/2011 bearing
24 bearing production numbers 24 production numbers NHL1615038
25 NHL0022969 through NHL0023034........... 252 25 through NHL1615040..................... 350

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1 ------------------ EXHIBITS ------------------ 1 record.
2 BURKE FOR ID. 2 MR. GOLDFEIN: Excuse me. Are we
3 Exhibit 28 3 going to have appearances on the record?
4 e-mail dated 9/30/2011 4 MR. GUDMUNDSON: He said -- do we
5 bearing production numbers 5 do appearances or did you just say they
6 NHL0091198 through NHL0091199........... 364 6 were already noted?
7 Exhibit 29 7 THE VIDEOGRAPHER: They're noted
8 e-mail dated 10/14/2006 8 but you can have appearances if you want
9 bearing production number NHL0028554.... 368 9 it on the record.
10 Exhibit 30 10 MR. GOLDFEIN: Yeah, I think we
11 Minutes of the Meeting of the 11 should.
12 General Managers & Assistant 12 MR. GUDMUNDSON: Brian Gudmundson
13 General Managers Westin Harbour 13 on behalf of Plaintiffs along with the
14 Castle - Toronto, Ontario, 14 law clerk from Zimmerman Reed, Dan
15 November 10-11, 2009 bearing 15 Dekrey, and my partner, Hart Robinovitch
16 production numbers NHL1040663 16 from Zimmerman Reed.
17 through NHL1040687...................... 373 17 MR. GOLDFEIN: Shep Goldfein for
18 18 the National Hockey League and for the
19 19 witness, Mr. Burke.
20 20 MR. SHAMIE: Stephen Shamie from
21 21 Hicks Morley, counsel to the Calgary
22 22 Flames.
23 23 MR. CRAPANZANO: And Greg
24 24 Crapanzano for the National Hockey
25 25 League and the witness.
Page 11 Page 13
1 THE VIDEOGRAPHER: This is the 1 MR. GOLDFEIN: And let me say for
2 start of the tape labeled number one of 2 the record that Mr. Shamie is here --
3 the videotaped deposition of Brian Burke 3 Mr. Burke, as you know, served as
4 In re. National Hockey League Players 4 general manager of I think three
5 Concussion Injury Litigation on August 5 Canadian clubs and two US clubs. And
6 19, 2015 at approximately 9:34 a.m. My 6 for economic purposes Mr. Shamie is here
7 name is Manuel Garcia from TSG 7 in connection with Mr. Burke's
8 Reporting, Inc. and I am the legal video 8 employment in connection with those
9 specialist. The court reporter is 9 clubs. And I'm here in connection with
10 Francis Frederick in association with 10 his employment at the National Hockey
11 TSG Reporting. Counsel are noted on the 11 League.
12 record. Will the court reporter please 12 But we have a general rule that an
13 swear in the witness. 13 objection by any one of us is good for
14 *** 14 all of us. I assume that'll apply.
15 BRIAN B U R K E, called as a witness, 15 MR. GUDMUNDSON: Certainly.
16 having been duly sworn by a Notary 16 Certainly. That'll be very helpful.
17 Public, was examined and testified as 17 Thank you.
18 follows: 18 BY MR. GUDMUNDSON:
19 EXAMINATION BY 19 Q. Start again. Can you please state
20 MR. GUDMUNDSON: 20 your full and address for the record.
21 Q. Good morning, Mr. Burke. 21
22 A. Good morning. 22
23 Q. My name is Brian Gudmundson. I'll 23 Q. I'm going to do just a small jaunt
24 be taking your deposition today. Can you 24 into your background to lead up to some other
25 start by stating your name and address for the 25 questions.

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1 Can you start by telling me where 1 Fliers and I played the next year in the
2 you went to high school. 2 American Hockey League in Portland, Maine.
3 A. I went to Edina West High School 3 Q. And at some point you went back to
4 in Edina, Minnesota. 4 school; is that correct?
5 Q. Me, too. 5 A. The following year.
6 A. Did you? 6 Q. In '78?
7 Q. Yeah. What years did you attend 7 A. Yeah.
8 there? 8 Q. And where did you go?
9 A. What years did you go? 9 A. Harvard Law School.
10 Q. '95 I graduated. 10 Q. And what year did you graduate
11 A. When did it go back to one? 11 from Harvard?
12 Q. It went back to one in '77 or '78. 12 A. '81.
13 Somewhere in there. The east is now a 13 Q. Okay. Let's take a step back and
14 community center. 14 talk about your playing career now at these
15 A. Yeah. Okay. 15 different levels. You say you started -- when
16 Q. And an elementary school. 16 you did start playing hockey?
17 A. What year did I graduate? 17 A. When I was 13.
18 Q. Yeah. 18 Q. Was that -- were you living in
19 A. 1973. 19 Edina at the time?
20 Q. Did you play on the '71 team? 20 A. Yep.
21 A. No. 21 Q. What level is that called at age
22 Q. Did you play hockey for Edina? 22 13? Do you recall?
23 A. Yeah. 23 A. Bantam.
24 Q. And after Edina did you go to 24 Q. Bantam.
25 college? 25 And did you play through and into
Page 15 Page 17
1 A. I went to Providence College in 1 high school?
2 Providence, Rhode Island. 2 A. Yep.
3 Q. Did you play hockey there? 3 Q. But you say -- well, were you on
4 A. I did. 4 varsity '72 and '73?
5 Q. What did you study at Providence 5 A. No.
6 College? 6 Q. '73? Were you ever on varsity?
7 A. History. 7 A. '73.
8 Q. Did you take any medical courses? 8 Q. '73.
9 A. First year I was in pre-med. 9 A. '72/73 season.
10 Q. How long did you last in pre-med? 10 Q. Do you still follow the team at
11 A. One year. 11 all?
12 And medical courses, no. 12 A. Yeah.
13 Chemistry -- whatever you take as a first year 13 Q. And you said you played for
14 pre-med major. No medical courses. 14 Providence College as well?
15 Q. Biology and chemistry and basic 15 A. Yeah.
16 things like that? 16 Q. Did you start?
17 A. Yes. 17 A. Well, you don't really start. I
18 Q. Did you take any sciences classes 18 mean, I lettered for four years if that's -- I
19 after first year? 19 was a walk-on freshman. Made the team.
20 A. No. 20 Played four years as captain my senior year.
21 Q. Switched to history? 21 Q. How did you pick Providence
22 A. (Witness nods.) 22 College?
23 Q. Okay. And what did you do after 23 A. Lou Lamoriello was the coach there
24 you graduated from Providence? 24 and he was friendly with Bob O'Connor who
25 A. I signed with the Philadelphia 25 coached in Edina.

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1 Q. Bob O'Connor was a coach at Edina 1 Q. What position did you play?
2 at that time? 2 A. Right wing.
3 A. He coached in Edina. I had him as 3 Q. Why do you say you weren't a very
4 a Bantam and as an (indiscernible) coach. 4 good player?
5 Q. Okay. And you somehow met him and 5 A. At the pro level the skill
6 that made a connection with Mr. Lamoriello? 6 requirement caught up with me.
7 A. Yeah. 7 Q. Did you ever play again after
8 Q. Was Willett Icala the coach at 8 leaving the Mariners?
9 that time? 9 A. No.
10 A. Nope. We split. I only played 10 Q. Okay. Throughout your time from
11 one year. We split to East and West my senior 11 when you were a Bantam up until you left the
12 year. So I played for Willett Icala. 12 Mariners, did you ever suffer a concussion?
13 Q. All right. Right, right, right. 13
14 And you lettered four years at 14
15 Providence College after walking on. And then 15
16 next time you played was with the Philadelphia 16
17 Fliers organization; is that correct? 17
18 MR. GOLDFEIN: Object to the form 18
19 of the question. Asked and answered. 19
20 You can answer again. 20
21 A. Well, technically, the spring of 21
22 my senior year after we were eliminated from 22
23 the playoffs I played seven games in 23
24 Springfield on a tryout agreement with the 24
25 Fliers. So I played seven games in late 25
Page 19 Page 21
1 March, early April with the Springfield 1
2 Indians. And that's how I got my contract 2
3 with the Fliers. 3
4 Q. Okay. Okay. 4
5 So you had a seven-game tryout 5
6 with -- was it called the Springfield Indians? 6
7 A. Springfield Indians. 7
8 Q. Okay. And then that led to a full 8
9 season with the Maine Marines; is that 9
10 correct? 10
11 A. Maine Mariners. Yeah. I signed 11
12 with the Fliers. I signed an old form 12
13 contract, one plus one. One year plus an 13
14 option. I deferred my admission at Harvard 14
15 Law School for a year. 15
16 Q. So you were accepted into Harvard 16
17 right after Providence? 17
18 A. During my senior year. 18 Q. I want to sort of explore what you
19 Q. Okay. And you deferred that to 19 mean by it was different back then. I think I
20 play hockey for a year. 20 know what you mean but I don't want to guess
21 A. Yep. 21 or I don't want to surmise what you mean.
22 Q. But then you went to Harvard just 22 Do you mean that if you got hit in
23 after the one year, correct? 23 the head so hard that you saw stars or that
24 A. Yes. I wasn't a very good player 24 you momentarily forgot where you were that it
25 so I went back to school. 25 wasn't really treated? Is that your

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1 definition? 1 teammates getting their bells rung, as you put
2 MR. GOLDFEIN: Objection to the 2 it?
3 form of the question. 3 A. You mean the whole time I played
4 A. Yes. 4 hockey in college and pro?
5 Q. When did that change? 5 Q. Yeah.
6 6 A. Sure. I mean, I don't -- when you
7 7 say do I recall, I'd have to think hard about
8 8 a specific instance. I'm sure it happened.
9 9 Q. Did you ever play with somebody
10 10 that got knocked out?
11 11 A. That got knocked out --
12 12 Q. Cold.
13 13 A. Not that I can recall.
14 14 Q. When you played hockey -- and I
15 15 realize that this is --
16 16 A. Strike that. I did -- I did see a
17 17 guy get knocked out cold in a fight one time.
18 18 Q. What level was that?
19 19 A. Teammate. The American League.
20 20 Q. In the AHL?
21 21 A. Yeah.
22 22 Q. You say he was knocked out in a
23 23 fight?
24 24 A. Yeah.
25 25 Q. And how was he treated?
Page 23 Page 25
1 1 A. He finished the game.
2 2 Q. Finished the game?
3 3 I kind of want to go back to what
4 4 you said earlier about it being different then
5 5 or -- I don't want to mischaracterize your
6 6 testimony so if I do, I know you'll correct
7 7 me. Or Mr. Goldfein will correct me.
8 8 MR. GOLDFEIN: Right.
9 9 Q. When you say it was different
10 10 then, was it -- were you allowed -- not
11 11 allowed, but was it something -- if you got
12 12 hit in the head so hard that you were dazed
13 13 and you fell to one knee or something, would
14 14 you tell anybody about that or would you just
15 15 suck it up and get back to the bench?
16 16 MR. GOLDFEIN: Object to the form
17 17 of the question. Leading and
18 18 suggestive.
19 19 Q. You can answer.
20 20 MR. GOLDFEIN: You can answer.
21 21 THE WITNESS: Oh.
22 When you were playing hockey or -- 22 MR. GOLDFEIN: Sorry.
23 let's stick with hockey. But feel free to 23 A. I mean, I can't speak for what
24 throw in football or any other sports you 24 other players did. I did that a couple of
25 played. Do you recall any other of your 25 times, yeah.

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1 Q. Is that the right thing to do in 1 Q. Okay. Were you at Hutchins &
2 your mind? 2 Wheeler up until '87?
3 MR. GOLDFEIN: Object to the form 3 A. Yes.
4 of the question. 4 Q. And then in the '87 you joined the
5 A. It's what we did. 5 Vancouver Canucks?
6 Q. Okay. You didn't think about 6 A. Yes.
7 whether it was the right thing to do or not, 7 Q. So my math and my time line has
8 right? 8 me --
9 A. It's what you did. You wanted to 9 A. Six years of practice.
10 play. You finished the game. 10 Q. Six years of practice. Okay.
11 Q. Okay. What did you do after you 11 A. I am still licensed in the
12 graduated from Harvard in 1981? 12 Commonwealth of Massachusetts.
13 A. I went to work for a law firm in 13 Q. You keep up your license?
14 Boston where I had been a summer associate 14 A. Yep.
15 for. 15 Q. Still go to CLEs and all that
16 Q. Which law -- sorry. 16 stuff?
17 A. First at Palmer & Dodge. And then 17 A. You don't have to.
18 I took the bar exam at the end of July. 18 Q. You don't have to?
19 Started working in September. Got our results 19 A. No.
20 I think in November. Practiced there for two 20 Q. If you're beyond a certain point
21 years. Then went to a smaller firm. 21 or something?
22 Q. You say the firm was called Palmer 22 A. If I had to do CLE work I probably
23 & Dodge? 23 would let it go but I'm still licensed.
24 A. Palmer & Dodge. 24 Q. Okay. So at Hutchins & Wheeler,
25 Q. What kind of law were you 25 approximately how long -- were you ever just
Page 27 Page 29
1 practicing there for two years? 1 exclusively an agent there?
2 A. The first year there was a 2 A. By the end of my six years -- my
3 rotation. You go from department to 3 fourth year there I was almost exclusively
4 department. And then after that I did 4 representing athletes.
5 corporate work. 5 Q. Do you recall how many athletes
6 Q. You mean like transactional? 6 you represented?
7 A. Yep. Blue sky. Transactional 7 A. Well, I think when I left in '87 I
8 stuff. 8 think I had approximately 20-plus guys in the
9 Q. Did you ever do litigation? 9 National Hockey League. I had great success
10 A. Just in my rotation. 10 at it.
11 Q. And then you went to a smaller 11 Q. How did you get into that line of
12 firm you said? 12 work of being an agent?
13 A. Yep. 13 A. My first three clients were former
14 Q. What was the name of that firm? 14 teammates.
15 A. Hutchins & Wheeler I think. 15 Q. At Providence or Edina?
16 Q. I'm sorry? 16 A. No, in Maine.
17 A. Hutchins & Wheeler. I think 17 Q. Oh, in Maine.
18 they've since merged with a Rhode Island firm. 18 A. Guys that were playing pro hockey.
19 Q. What kind of law did you practice 19 Q. Right, okay.
20 at Hutchins & Wheeler? 20 A. Yeah.
21 A. I did my first year there mostly 21 Q. And it sort of mushroomed from
22 corporate stuff and then I started to get into 22 there?
23 representing athletes. 23 A. Yep.
24 Q. Like an agent? 24 Q. They referred their friends and
25 A. Yep. 25 stuff?

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1 A. Yep. 1 compared to what they were with the Canucks?
2 Q. Okay. And then how did -- strike 2 A. I was also named president of the
3 that. 3 team briefly, but it was basically run the
4 How did the opportunities with the 4 whole operation. I continued to do all the
5 Vancouver Canucks present itself? Did they 5 player contracts. I was responsible for all
6 come to you? 6 trades. My assistant GM ran the farm team and
7 A. Yes. 7 ran the scouting systems.
8 Q. Do you know why? 8 Q. Okay. Tell me about the role of a
9 A. Because I'm good at what I do. 9 GM in the National Hockey League. Do you
10 Q. But you were an agent at the time 10 think it's a bigger role in the National
11 and you were sort of on the other side of the 11 Hockey League than it is in, say, the National
12 table. Were you that good of an agent that 12 Football League?
13 they wanted you on their side? 13 MR. GOLDFEIN: Objection to the
14 A. Yeah. 14 form of the question. Lacks foundation.
15 Q. And what was your first role at 15 THE WITNESS: Do you want me to
16 the Vancouver Canucks? 16 answer?
17 A. I was Vice President and Director 17 MR. GOLDFEIN: You can answer. If
18 of Hockey Operations. 18 you know.
19 Q. What did that entail? 19 THE WITNESS: Yeah, I do.
20 A. Everything but trades. Like, I 20 A. I've studied what the other sports
21 ran amateur scouting. I ran pro scouting. I 21 do. I've always been -- what I've tried to
22 did all the player contracts. I did all the 22 strive for is best practices in sports and not
23 staff contracts. Ran the farm team. 23 just in hockey. They have -- it's a much
24 Q. Who had control of the trades? 24 different animal. Much bigger staff. They
25 A. Pat Quinn. 25 spend way more time managing their coaching
Page 31 Page 33
1 Q. Pat Quinn? 1 staff. Trades are fewer in our system. They
2 A. (Witness nods.) 2 are now on a hard cap system, but back then
3 Q. He was the GM? 3 hockey GMs made way more trades than football
4 A. Yep. 4 GMs.
5 Q. Were your roles essentially the 5 Q. When you -- the testimony you just
6 same from 1987 until you left the team? 6 gave, was that about hockey GMs or football
7 A. Yep. 7 GMs?
8 Q. Okay. And in 1992 you became 8 A. Hockey GMs back then made way more
9 general manager of the Hartford Whalers; is 9 trades than National Football League GMs.
10 that right? 10 Q. And so when you testified that
11 A. Correct. 11 they have greater control -- the GMs have
12 Q. And did they hire you away or did 12 greater control over the coaching staff --
13 you apply for that job? 13 A. No, no. I didn't say that. I
14 A. They approached me. 14 said they spend more managing their staff.
15 Q. And so why did you want to leave 15 They have more coaches.
16 Vancouver to take the job with Hartford? 16 Q. Okay.
17 A. Mainly because it was a general 17 A. They've got like ten assistant
18 manager's job. It was a major promotion. The 18 coaches, a head coach, coordinators. They
19 money was better. And geographically for my 19 have to spend more time, because they have a
20 family at the time it made sense. 20 bigger staff, with their staff.
21 Q. Being in New England? 21 MR. GOLDFEIN: That's football.
22 A. Yeah. My first wife was from 22 A. Football.
23 Boston. 23 Q. Oh, okay. That's --
24 Q. So what were your roles with the 24 MR. GOLDFEIN: I think the
25 Hartford Whalers as general manager as 25 confusion was the pronoun "they," when

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1 you said "they." 1 MR. GOLDFEIN: I'll reserve my
2 A. Oh, sorry. The National Football 2 right to object to your questions if and
3 League, the general manager there has to spend 3 when they're appropriate or
4 way more time managing -- my view from the 4 inappropriate.
5 outside. 5 BY MR. GUDMUNDSON:
6 Q. Sure. 6 Q. So as general manager of the
7 A. Spend way more time managing their 7 Hartford Whalers your job is pretty much the
8 staff than -- we have a much smaller staff. 8 same as with the Canucks except you did the
9 Q. Okay. And so you spend -- the 9 trades as well?
10 National Hockey League manager spends more of 10 A. Yes.
11 their time doing what? 11 Q. Okay. What kind of interactions
12 A. On trades. Working the phone. On 12 did you have with the coaching staff?
13 trades. Now, that was pre-cap. There's 13 A. Almost daily.
14 fewer -- far fewer trades now then there were. 14 Q. Did you have input on how the game
15 But back then it was -- your primary job was 15 was played on the ice?
16 working the phone. 16 A. Yes.
17 Q. And you said a cap. Is that the 17 Q. What kind of input?
18 salary cap? 18 A. Well, I have -- I'm committed
19 A. Yes. 19 to -- the input would be first off I hire the
20 Q. When did that get implemented? 20 coach.
21 A. First one was '05. '05. 21 Second, my role was that we had to
22 MR. GOLDFEIN: '05, '06. 22 agree on one of the two assistant coaches and
23 A. And it's retarded trading 23 then the coach was free to hire the other
24 significantly. 24 assistant coach. So input into hiring at
25 Q. Okay. Curtailed it you mean? 25 least one of the assistant coaches. And then
Page 35 Page 37
1 A. Yes. 1 in terms of how we played just an overall
2 Q. Okay. 2 philosophy of play, which we discussed before
3 A. You don't like my adjectives or my 3 we hired the coach.
4 adverbs? 4 Q. So if you had a certain philosophy
5 Q. I'm trying to make a nice clean 5 about how the game was played you imparted
6 record. 6 that to the coach?
7 A. Okay. 7 A. Yes.
8 MR. GOLDFEIN: Well, the record is 8 Q. And you expected the coach to
9 his words, not yours. So -- 9 follow that?
10 A. It has reduced the number of 10 A. Yes.
11 trades. It has restricted your ability to 11 Q. As well as all his assistants?
12 trade players. 12 A. Yes.
13 Q. Okay. And I'm sure that there's 13 Q. Did you expect the players to
14 going to be a number of times throughout this 14 follow that?
15 deposition that I might ask clarification on 15 A. Yes.
16 something you say even if they're your words. 16 Q. Did the players -- did you expect
17 I'm certainly entitled to do that and I know 17 the players to follow your direction or the
18 Mr. Goldfein would agree with that. 18 coach's direction?
19 MR. GOLDFEIN: Well, you're 19 A. The coach's.
20 allowed to ask questions, not to suggest 20 Q. The coach's?
21 answers. 21 That raises a point. I'm guilty
22 MR. GUDMUNDSON: That's enough, 22 of it, too. We sort of talk over one another
23 okay? That's enough. We're not going 23 because it gets conversational. I don't spend
24 to take up this deposition hearing from 24 a lot of time doing a lot of instructions at
25 you, Mr. Goldfein. 25 depositions. I presume you know what they

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1 are. But I'm going to try to not interrupt 1 Q. Steve Walkom?
2 you and please try to wait for my question to 2 A. Steve Walkom.
3 answer so that the court reporter doesn't 3 Q. And so in working with the
4 start freaking out on us. 4 officials, would you give guidance to the
5 THE COURT REPORTER: Too late. 5 officials on what kind of penalty you wanted
6 Q. It's too late? 6 to see called?
7 Okay. And you were with the 7 Or I'm sorry. Strike that.
8 Hartford Whalers for how long? 8 Would you give guidance to
9 A. One season. 9 officials as to how you wanted to see
10 Q. And then what was your next job? 10 penalties called?
11 A. I was Senior Vice President and 11 MR. GOLDFEIN: Object to the form
12 Director of Hockey Operations at the National 12 of the question.
13 Hockey League. 13 A. They took their direct supervision
14 Q. And how did that job come about? 14 print Bryan Lewis. We talked generally at
15 A. I had been approached by Gary 15 training camp about standards of officiating
16 Bettman about the job. I initially told him I 16 and standard of calls. But, no, I did not
17 was going to stay at the GM level. And then I 17 micromanage the officials.
18 approached him later in the summer and said I 18 Q. When you say you talked at
19 was interested. And he said, Well, why don't 19 training camp, was that a formal meeting or
20 you come to work for me, then. 20 was that an informal meeting?
21 Q. Okay. So he initially approached 21 A. Both.
22 you? 22 Q. What was the formal meeting? It
23 A. Yes. 23 was between you and Mr. Lewis and the head of
24 Q. Do you know why? 24 officials or somebody? Who was involved with
25 A. Because I'm good at what I do. 25 that?
Page 39 Page 41
1 Q. So what was your first job with 1 A. All the officials. We had
2 the NHL? 2 training camp. And we'd all meet in a room
3 A. It was the same as it was when you 3 and talk about what we were trying to strive
4 left. It was the Senior Vice President of 4 for for the next season. Points of emphasis.
5 Hockey Operations I believe was the title. 5 And then they had individual meetings and
6 Q. What were your roles? 6 workshops.
7 A. My role was supplementary 7 Q. So this was training camp for the
8 discipline. My role was to participate in 8 officials.
9 collective bargaining with the players and 9 A. Yes.
10 officials. My role was to work as liaison 10 Q. Not training camp for the players.
11 with USA Hockey and the Canadian Hockey 11 A. Correct.
12 Association and the International Ice Hockey 12 Q. Okay. And when did training camp
13 Federation. And obviously work with the 13 for the officials start, just before the
14 officials. 14 season, just like the players or --
15 Q. What do you mean by "work with the 15 A. Yeah. It was -- I mean, roughly,
16 officials"? 16 yes.
17 A. Technically I was the officials' 17 Q. The first thing you mentioned in
18 boss. The referees and the linesmen. Their 18 your roles was determining supplemental
19 direct boss was Bryan Lewis, but he reported 19 discipline; is that correct?
20 to me. 20 A. Yes.
21 Q. What was Bryan Lewis's title? 21 Q. Tell me what that means.
22 A. Director of Officiating I believe. 22 A. Well, the NHL rule book provides
23 Q. Who's the Director of Officiating 23 for supplementary discipline when penalties
24 today; do you know? 24 are committed that cross the line. And the
25 A. Stevie Walkom I think. 25 League -- the Commissioner appointed someone

612.338.3376
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1 to handle supplementary discipline. And I was 1 look you in the eye, could you make them do
2 that person. 2 that?
3 Q. And how did you make your 3 A. No.
4 determinations about who merited supplemental 4 Q. You had to follow the protocol
5 discipline or supplementary discipline? 5 that was employed as the formal policy?
6 A. Well, the system itself -- when I 6 A. Well, you had to call a formal
7 started in the job in '93, I sat down with a 7 in-person hearing if it was the threshold or
8 the number two guy at the Players' -- or 8 above. I believe it was four games. So if I
9 number three guy -- whatever, their hockey 9 wanted to suspend Joe Smith for four games he
10 operation guys with the NHLPA and said this 10 had to fly in for a hearing. Or I could go to
11 system is only going to work if you guys 11 a hearing. I could go to Chicago and meet
12 understand how it works. So you tell what's 12 him. We did hearings on the road, too. But
13 important from the Players' Association 13 if I wanted to give a guy one game I could not
14 standpoint and we will draft this policy. 14 fly him in, no.
15 I'll draft it but in concert with you. 15 Q. Were you required to ask the
16 And so, for example, the number 16 NHLPA's input in the protocol?
17 one complaint that the players had at that 17 A. Yes.
18 time was that they would have to fly to New 18 Q. Required by who?
19 York for a hearing and then get suspended for 19 A. It's in the protocol.
20 one game. So we suggested, Okay, what's a 20 Q. It's in what protocol?
21 logical threshold. That we can do it by 21 A. It's in the supplementary
22 telephone if it's fewer than three games or 22 discipline. They participate. The NHLPA
23 four games. So that went into the system at 23 participates in all the hearings.
24 the PA's request. 24 Q. Okay. Is that mandated by the
25 The standard in terms of how the 25 CBA?
Page 43 Page 45
1 hearings were conducted, they wanted the 1 A. It's what we drafted. I have no
2 players to be without prejudice. The players 2 idea it's the mandated by the CBA.
3 could say whatever they wanted, including 3 Q. Okay. Do you know if it's
4 indicting officials if they wanted to. And we 4 mandated by anybody? Or is it just something
5 agreed to a free speech rule without 5 that you guys voluntarily did with the NHLPA?
6 prejudice. 6 A. I don't recall. I think it was --
7 So they had a hand in the whole 7 my guess is there's language in the CBA that
8 policy. It was drafted and put to them and 8 would require the NHLPA to be consulted. But
9 then promulgated as far as this is how we're 9 the way we drafted this procedure was how do
10 going to do supplementary discipline. We're 10 we make this work for the NHL and for the NHL
11 going to review each thing. The players get 11 players. The whole point was how do we make
12 an opportunity to speak. The union has input 12 this process work. So they had input in it.
13 in the hearing. The player's agent has input 13 They're involved in every hearing. They have
14 in the hearing. There's no limits. Anyone 14 an opportunity to speak at every hearing and
15 could say whatever they want and speak for as 15 they do speak at every hearing in my
16 long as they want and then I'm going to make a 16 experience.
17 decision. 17 Q. But you don't know if it's the
18 Q. Okay. Was that a formal process 18 mandatory or not.
19 you were required to follow? 19 MR. GOLDFEIN: Object to the form
20 A. I'm not sure I understand that. 20 of the question as calling for a legal
21 Q. What if you didn't want to have a 21 conclusion.
22 hearing or what if didn't want to -- what if 22 A. I don't know.
23 you wanted the player to fly to see you even 23 Q. Okay. Now, when you're meting out
24 though it was only a one-day suspension. What 24 supplemental discipline and you're making
25 if you wanted them to sit in your office and 25 decisions on suspensions or whether somebody

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1 should be suspended, what's your primary goal? 1 I had a very able right-hand man there who did
2 A. The system was designed to punish 2 90 percent of the work. But as far as the
3 offenders and to deter future conduct. 3 major decisions like ticket pricing, hiring,
4 Q. And why did you want to punish 4 advertising campaigns, that was all under me.
5 offenders and deter future conduct? Was it a 5 Q. And then you also did the entire
6 safety issue? 6 hockey side. Could you tell me what that
7 A. Yes. 7 means. Was that the type of roles you talked
8 Q. How long were you in that role at 8 about before? Was that trades --
9 the NHL? 9 A. Trades. Farm team.
10 A. Five years. 10 Q. Scouting?
11 Q. And I think you testified that 11 A. Trades farm team. Amateur
12 your roles were pretty much the same 12 scouting. Pro scouting.
13 throughout that entire time; is that correct? 13 Q. Were there a lot of GMs at that
14 A. Yeah, I would say so. 14 time or at any time who also ran the entire
15 Q. Okay. And then you left after 15 business side of the organization?
16 five years; is that correct? 16 MR. GOLDFEIN: Object to the form
17 A. Correct. 17 of the question as lacking foundation.
18 Q. Who took over your job at that 18 A. I don't know. I mean, I'm sure
19 point? 19 there were. And I'm sure there were others
20 A. Colin Campbell took over after I 20 who had the title that did nothing. I'd have
21 left. 21 to spend considerable amount of time looking
22 Q. So approximately 1998? 22 through a book to figure that out.
23 A. '98. 23 Q. Okay. Running the business side
24 Q. Where did you go in 1998? 24 as well, is that something that you asked for
25 A. Vancouver. 25 when you were -- when Vancouver wanted to hire
Page 47 Page 49
1 Q. To be the general manager? 1 you?
2 A. I think I was president and 2 A. Yes.
3 general manager. But, yes. 3 Q. And did Vancouver come to you or
4 Q. And why did you leave the NHL to 4 did you go to Vancouver to get this job?
5 take that role with the Canucks? 5 A. Vancouver approached me.
6 A. I really enjoyed working for the 6 Q. Okay. Were the Canucks, did they
7 NHL, but I missed being with the team. 7 have successful seasons while you were there?
8 Q. What did you miss? 8 A. Yes.
9 A. I missed being part of a team. 9 Q. How successful? Did they ever win
10 Q. And what were your roles with 10 the Stanley Cup?
11 Vancouver? 11 A. No.
12 A. As president I ran the entire 12 Q. Did they make it to playoffs?
13 business side of the operation. And I ran the 13 A. Yep.
14 entire hockey side of the operation. 14 Q. How many years were you there?
15 Q. Is that a bigger role or a much 15 A. Well, I was there for six years.
16 bigger role than just being a GM? Or neither? 16 I think we were in the playoffs -- I'd have to
17 A. Well, this will -- this answer 17 look, but three certainly. Maybe four. We
18 will wander a little bit. I'll try and keep 18 had three hundred-point seasons.
19 it concise. The president's title is often 19 Q. Under the old point scoring model,
20 given as an honorary so you can say you're 20 right?
21 president and general manager when, in fact, 21 A. What do you mean?
22 someone else runs the business side. The 22 MR. GOLDFEIN: Object to the form
23 president runs the business side of the team. 23 of the question.
24 In Vancouver I was also in charge of the 24 Q. Well, what you mean by 300 points?
25 business side of the team. And I was helped. 25 A. We had three 100-point seasons.

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1 Q. Oh, okay. 1 labor dispute. There was a lockout that cost
2 And your role overseeing the 2 the '04/05 season so I did not work in hockey
3 hockey side of the operation with the 3 that year. I worked in television.
4 Vancouver Canucks, you had the same input over 4 Q. Who did you work for?
5 how the coaching staff coached the game and 5 A. I worked for the CBC. And for
6 the players played as opposed to previous -- 6 TSN.
7 MR. GOLDFEIN: Objection to the 7 Q. In Canada?
8 form of the question. 8 A. Yeah.
9 MR. GUDMUNDSON: Can I finish my 9 Q. Did you stay living in Canada at
10 question, please? 10 that time?
11 Q. -- as your prior stints as general 11 A. I lived in Vancouver at that time.
12 manager? 12 Q. Okay. What kind of things were
13 MR. GOLDFEIN: Objection to the 13 you broadcasting about if there was no hockey?
14 form of the question. 14 A. Mostly -- well, first I did the
15 A. Explain what you're asking me. 15 draft for TSN. So they do the draft live so I
16 I'm sorry. 16 did draft coverage for them. And then I went
17 Q. Earlier you testified as a general 17 to work for -- that August I think it was --
18 manager you had input with the coaching staff 18 for the CBC and did the World Cup of Hockey.
19 over how the game was played on the ice and 19 Did studio work. And then I went back to the
20 you expected it to be followed. Was that the 20 studio with TSN. And most of it was
21 same as when you were with the Vancouver 21 commentary on the work stoppage and labor
22 Canucks? 22 dispute.
23 A. Correct. 23 Q. That garnered a significant amount
24 Q. Who was your coach when you were 24 of media attention at that time, if I recall;
25 the Vancouver Canucks? 25 is that correct?
Page 51 Page 53
1 A. Mark Crawford. 1 A. How so?
2 Q. Okay. 2 Q. The labor dispute especially in
3 A. I mean, when I went there it was 3 Canada?
4 Mike Keenan. 4 A. Oh, I'm sorry. I thought you
5 Q. Right. 5 meant my work. Yes. The labor dispute did.
6 A. And mid-way through the first 6 Q. Once the lockout was resolved did
7 season I fired Mike Keenan and brought in Mark 7 you stay in Canada?
8 Crawford. 8 A. No.
9 Q. And then you left the Vancouver 9 Q. Where did you go after that?
10 Canucks after six years; is that correct? 10 A. I was hired to run the Anaheim
11 A. Correct. 11 Ducks.
12 Q. Why did you leave? 12 Q. And did they come to you?
13 A. My contract was not renewed. 13 A. Yes.
14 Q. Do you know why it was not 14 Q. Did they have to wait until the
15 renewed? 15 lockout was over to approach you or did you
16 A. Yes. 16 have this in place before the lockout ended?
17 Q. Why? 17 MR. GOLDFEIN: Object to the form
18 A. Because the team was sold and they 18 of the question.
19 wanted a new guy. 19 A. I don't know.
20 Q. Who did they bring in? 20 Q. Okay.
21 A. David Nonis. 21 A. I mean, I was unemployed, so I
22 Q. Nonis, N-O-N-I-S; is that correct? 22 don't think there's any League restrictions on
23 A. Yes. 23 talking to me.
24 Q. And what did you do then? 24 Q. Sure. And I'm not suggesting one
25 A. The next season was lost to a 25 was right and one was wrong. I'm just trying

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1 to get a sense of the timing. 1 Ducks on ice?
2 But suffice it to say, you were 2 A. Yes.
3 employed as a general manager of the Mighty 3 Q. You won the Stanley Cup, correct?
4 Ducks at the beginning of the 2005/6 NHL 4 A. Yes.
5 hockey season, correct? 5 Q. What year?
6 A. Correct. 6 A. '07.
7 Q. And were your roles as the general 7 Q. And you were with the team for how
8 manager of the Ducks, were they the same 8 long?
9 primarily as they were with the Whalers and 9 A. I was with the team for three and
10 the Canucks? 10 a half years.
11 MR. GOLDFEIN: Object to the form 11 Q. Did you make the playoffs every
12 of the question. 12 year you were there?
13 A. As to general manager's duties, 13 A. Yes.
14 yes. 14 Q. And why did you leave the Ducks
15 Q. Did you run the business with the 15 after three and a half years?
16 Ducks? 16 A. I had told -- I was on a four-year
17 A. I did not. 17 contract, and I told ownership that I would
18 Q. Is that something you wanted to 18 complete my four years and then was going to
19 do? 19 look to move farther east. I was commuting to
20 A. No. They had a really good guy in 20 see my kids in Boston the entire time I was in
21 place. 21 Vancouver and Anaheim. I went back every
22 Q. Why did you want to do it with the 22 other weekend to see my kids in Boston. And I
23 Canucks; did they have not it a really good 23 was sick of the traveling. It was killing me.
24 guy in place? 24 So I told them I would complete my fourth year
25 MR. GOLDFEIN: Object to the form 25 and then was going to look to move farther
Page 55 Page 57
1 of the question. 1 east.
2 A. When I went to Vancouver at the 2 Q. Okay. So your wife and all your
3 end of my first year there were 7,600 season 3 kids remained living in Boston throughout the
4 tickets. The team couldn't win, couldn't 4 time you were traveling around?
5 draw, couldn't sell tickets. Couldn't do 5 A. My first wife. And four of my
6 anything. So, yes, I wanted to run that part 6 kids, yes.
7 of it. Anaheim, they had a very able person 7
8 in charge of the business side and there was 8
9 no reason for me to worry about that side. 9
10 Q. Okay. So when you went to the 10 Q. Okay. So -- and that was the
11 Canucks, did you go as president or did you 11 second wife?
12 add that title after the first year? 12 A. Yep.
13 A. No. I think I went as president. 13 Q. And so what was the next job you
14 I'd have to check but I think I went as 14 took?
15 president. 15 A. Well, ownership called me and said
16 Q. Okay. And so again as the Mighty 16 we're not comfortable having a GM in place.
17 Ducks as the general manager you had the same 17 We'd like to put someone else in your seat.
18 input with the coaching staff and control over 18 And they said we can't do that contractually
19 how the game was played on the ice as you did 19 because you're the guy and you just won us a
20 with the Canucks and the Whalers; is that 20 Cup, we don't want to fire you. So what do we
21 correct? 21 do. So I said, You want me to step up, I'll
22 MR. GOLDFEIN: Object to the form 22 step up. They're wonderful people, the owners
23 of the question. 23 in Anaheim. So I stepped up. They promoted
24 A. That's correct. 24 Bob Murray, my assistant GM, and I became a
25 Q. And did you have success with the 25 senior advisor.

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1 Q. So you sort of relegated your post 1 A. Yep.
2 in order for them to have more continuity when 2 Q. Then what happened?
3 you left? 3 A. I was fired.
4 A. Yes. 4 Q. Why?
5 Q. Okay. And so what was your -- how 5 A. Because they wanted -- the team
6 long did you remain in that role? 6 got sold and they and wanted someone else.
7 A. I'd have to check. 7 Q. Did you have success on ice when
8 Q. Half a year? 8 you were general manager of the Maple Leafs?
9 A. No, not even. A couple weeks. 9 A. I want to -- the answer is no.
10 Q. And then you got a new job, 10 Q. Okay.
11 correct? 11 A. But I want to step back. When you
12 A. Correct. 12 asked about success in Vancouver, and you said
13 Q. The Toronto Maple Leafs? 13 did you ever win a Stanley Cup there, success
14 A. Correct. 14 when you take over a team is improvement and
15 Q. And did they come to you when you 15 building. Like, the tenure in Vancouver, we
16 stepped down? Is that what happened? 16 never won a championship but we had great
17 A. Yes. 17 success considering what we started with.
18 Q. And you took over the role of 18 Toronto was a big mess. And I think I made
19 general manager; is that correct? 19 considerable improvement in that mess. But,
20 A. Yes. I think my title was 20 no, on the ice it did not translate.
21 president and general manager. But, again, 21 Q. But you feel you improved the club
22 there it was a misnomer. I did not run the 22 during your tenure there?
23 business side. 23 A. I do.
24 Q. Okay. It was more of just a 24 Q. Okay. And I certainly didn't mean
25 title? 25 to suggest by not winning a Stanley Cup at
Page 59 Page 61
1 A. Correct. 1 Vancouver that -- I mean, I understand --
2 Q. Okay. And how long were you with 2 which is why I asked did you go to playoffs
3 the Maple Leafs? 3 because I remember the era and getting to the
4 A. Five years. Roughly. 4 playoffs was probably the equivalent or more
5 Q. And your duties with the Maple 5 in the region of Canada at that time.
6 Leafs, were they similar to what they were as 6 A. Correct. And I think it's -- and
7 general manager with the Ducks, the Canucks, 7 the perspective should be as you evaluate a
8 and the Whalers? 8 general manager's success, there are stages of
9 MR. GOLDFEIN: Object to the form 9 development of teams. That's all. So success
10 of the question. 10 for a guy who takes over and has a ten-point
11 A. Correct. 11 improvement on a terrible team, that's a
12 Q. You had oversight of coaching 12 successful year even if you miss the playoffs.
13 staff and how they coached the game on the 13 Q. Right. Well, I'm from Minnesota.
14 ice, correct? 14 All our teams are bad. So everybody who comes
15 A. Correct. 15 in and wins even one game it's a miracle so
16 Q. You expected them to follow your 16 I'm familiar with the concept.
17 guidance in how you wanted the game to be 17 So when you got fired from the
18 played? 18 Toronto Maple Leafs what did you do then?
19 A. Correct. 19 A. So that was '13. I just want to
20 Q. And how long were you with the -- 20 get my dates straight. I'm trying to think
21 oh, I'm sorry. You were with the Maple Leafs 21 just to get the timing straight here.
22 for five years? 22 My next -- I was basically -- get
23 A. I'd have to check the exact dates. 23 it straight. I was involved with the US
24 Five -- roughly five years. 24 Olympic Team in Sochi in 2014. Before that I
25 Q. Until approximately 2013? 25 started with Calgary about -- just about two

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1 years ago today I think. So 2013. 1 of the --
2 Q. So August of 2013 you started with 2 MR. GOLDFEIN: Object to the form
3 Calgary? 3 of the question.
4 A. Yep. 4 A. Yeah, I don't know how you --
5 Q. Okay. Did you do anything 5 Q. Well, if you -- so you were
6 between -- I think you left -- did you leave 6 actually the boss of the GM in that role?
7 Toronto midway between the season? 7 A. Yes.
8 A. Yes. I think it was January I 8 Q. Okay.
9 think. Right when the new collective 9 A. And the only reason I'm
10 bargaining agreement was announced. 10 hesitating, it's an evolving role. In all
11 Q. Did you do anything between then 11 sports. Not just in our case.
12 and August, hockey related? 12 Q. And so as boss of the GM did you
13 A. No. 13 still have input into how the game is played
14 Q. Okay. So approximately August 14 on ice?
15 2013 -- 15 A. Yes.
16 A. That's not true. Sorry. I worked 16 Q. So do you sort of dictate to the
17 for Anaheim part time as a pro scout. 17 GM how you expect the game to be played on
18 Q. Okay. What kind of stuff did you 18 ice?
19 do in that role? 19 MR. GOLDFEIN: Object to the form
20 A. Basically the first two weeks that 20 of the question.
21 I worked for them I was not paid. This was an 21 A. No. It's an evolving role. I
22 accommodation they made with the Toronto Maple 22 believe the GM should be the GM subject to my
23 Leafs to give me something to do. And I 23 supervision. And most of the major decisions
24 continued to be paid by the Maple Leafs till 24 he makes. I have input. But he makes them.
25 the end of my contract. Anaheim I just did 25 Q. Okay. In terms of the coaching
Page 63 Page 65
1 pro scouting for them. Like, file reports on 1 staff do you speak with them directly about
2 teams that played in Toronto. I traveled with 2 how you want the game to be played or do you
3 the team for a couple of road trips. Went to 3 leave that to the GM?
4 the draft for Anaheim. But it was a non-paid 4 A. That's the GM's job.
5 position. That's why I said no. So I did 5 Q. Okay. But you convey to the GM
6 work for them. All they paid were my 6 how you expect the game to be played?
7 expenses. And then that stopped with the 7 A. Yes. And to step back, a lot this
8 draft. 8 is covered in an interview process. When you
9 Q. Okay. And you came to the Calgary 9 hire a coach you talk about your style of
10 Flames in August 2013, is that what you said? 10 play. You make a sure there's a match there.
11 A. I think so, yeah. 11 It's not like the first day of training camp
12 Q. And what was your role there? 12 you have to sit the coach down and say I know
13 A. I am President of Hockey 13 this is all new, but here's how I like things
14 Operations. 14 done. That's done in an interview process.
15 Q. And what is that -- what were your 15 You make sure there's a mix -- a match.
16 roles in that job? 16 Q. Okay. Do you have ongoing input
17 A. It's a relatively new position in 17 throughout the season with the GM or do you
18 pro sports. They've had it in a half dozen 18 primarily take it care of it through the
19 NBA teams I think. A half dozen baseball 19 interview process?
20 teams. And a half dozen football teams. 20 A. No. I have ongoing input.
21 Maybe five, six NHL teams. Where your job is 21 Q. And to be fair you did testify
22 basically to oversee the general manager, 22 this is a developing role so it might change
23 provide corporate support. It's an evolving 23 year to year?
24 role. 24 A. Correct.
25 Q. Is it like CEO of the hockey side 25 Q. But you expect that your input is

612.338.3376
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1 going to be respected, correct? 1 MR. GOLDFEIN: Object to the form,
2 MR. GOLDFEIN: Object to the form 2 the commentary and the speechifying.
3 of the question. 3 You're here to ask questions.
4 A. Yes, I do. 4 MR. GUDMUNDSON: That's your
5 Q. I'm going to move on from your 5 second speaking objection, Shep. A
6 work history and sort of get into more of what 6 third one and I'm going -- we're calling
7 this case is about and look at some documents 7 the judge. Is that understood?
8 and things like that that I'm sure you've had 8 MR. GOLDFEIN: We can call the
9 a chance to review at least of some of them. 9 judge. I'm happy to call the judge.
10 First of all, did you prepare for 10 BY MR. GUDMUNDSON:
11 this deposition? 11 Q. Were you ever warned of the
12 A. Yes. 12 long-term risk of neurocognitive issues if you
13 MR. GOLDFEIN: Object -- object to 13 suffered repeated head injuries?
14 the form of the question, but you can 14 MR. GOLDFEIN: Object to the form
15 answer. 15 of the question. Lacking foundation.
16 Q. How did you prepare? 16 And competence of the witness.
17 MR. GOLDFEIN: All right. I'll 17 A. Was I ever warned -- would you
18 object and instruct you not to disclose 18 repeat that, please?
19 any communications between your counsel 19 MR. GUDMUNDSON: Could you read it
20 and yourself. You can generically 20 back, please.
21 describe the fact of your meetings. 21 (Record read.)
22 THE WITNESS: I don't -- 22 A. You mean as a player?
23 Q. Your counsel is absolutely 23 Q. Correct.
24 correct. I don't want to know anything about 24 A. I don't think so.
25 what your lawyers told you. I just want to 25 Q. Were you otherwise aware that
Page 67 Page 69
1 know did you meet with your lawyers -- 1 there was any such risk?
2 MR. GOLDFEIN: Why don't you ask 2 MR. GOLDFEIN: Object to the form
3 specific questions. I think it will be 3 of the question.
4 easier that way. 4 A. When I was a player I don't think
5 Q. Did you meet with your lawyers to 5 it was something that was discussed.
6 prepare for this deposition? 6 Q. Okay. Did you ever do any
7 A. Yes. 7 research on your own?
8 Q. Who did you meet with? 8 A. No.
9 A. Shep, Greg. Mr. Shamie. 9 MR. GOLDFEIN: Object to the form
10 Q. Just those three? 10 of the question.
11 A. Yeah. 11 Q. Did you ever get into any fights
12 Q. Okay. How long did you meet? 12 as a hockey player?
13 A. Two days. 13 A. Yes.
14 Q. Did you go through documents? 14 Q. At what level?
15 A. Yes. 15 A. Once in college and several in
16 Q. Approximately how many documents 16 summer league back in Minnesota. As a pro, I
17 did you go through? 17 don't know, maybe six.
18 A. I'd say a couple hundred. 18 Q. So you were in approximately six
19 Q. Okay. 19 fights in the seven games plus the one year
20 All right. So like I said, I just 20 you had in the AHL?
21 wanted to make a little record on that. I'm 21 A. I'd have to add them up. I'd say
22 going to bring -- sort of pivot now and go 22 something like that. Six.
23 into a little more of what this case is about 23 Q. Do you remember all of them?
24 and I think you're familiar with it if you met 24 A. If I sat down I probably could.
25 for two days with your counsel. 25 Q. What summer league were you

612.338.3376
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1 playing in Minnesota? 1 MR. GOLDFEIN: Object to the form
2 A. There was a league at Braemar and 2 of the question.
3 then at Augsberg. 3 A. To my knowledge, there's never a
4 Q. And what years did you play in 4 firm link between the science and the
5 those leagues? 5 long-term risks.
6 A. Every year I was in school. I 6 Q. Okay. So what was being warned
7 went back for the summer '74, '75 and '76. 7 about?
8 Q. So when you were at Providence you 8 A. Being warned about the importance
9 came back and played there? 9 of head injuries and not returning to play
10 A. Yeah. 10 before they were completely healed.
11 Q. Okay. I'm sure you know this, but 11 Q. And are you a scientist?
12 Braemar is almost exactly as you left it. 12 A. No. I'm not a scientist.
13 Very, very little has changed. 13 Q. Okay. And what is the basis for
14 A. They've got glass now. 14 your knowledge that there's no link between
15 Q. What's that? 15 repeated headed injuries and long-term
16 A. They've got glass now. 16 neurological issues?
17 Q. They didn't have glass then? 17 A. There's been a presentation made
18 A. No. 18 to the general managers on at least one
19 Q. Okay. Then it has changed. 19 occasion with review of the science.
20 As a general manager or in any 20 Q. When was that presentation?
21 other roles with NHL clubs, did you ever -- 21 A. I'd have to -- I can check if
22 were you aware of any warnings that were ever 22 you'd like. It was one of the GM meetings or
23 given to players on the team about the risk of 23 two of the GM meetings in the last three or
24 long-term neurological issues from repeated 24 four years, certainly.
25 blows to the head? 25 Q. Okay. So was it when you were
Page 71 Page 73
1 MR. GOLDFEIN: Object to the form 1 with Calgary?
2 of that question. 2 A. I know. I had to have check.
3 A. I know the League has been 3 Q. But it was within the last three
4 diligent in the modern era about the 4 or four years?
5 warnings -- about the seriousness of head 5 A. Yeah.
6 injuries. 6 Q. Okay. I'm not sure that that
7 Q. Could you tell me what warnings 7 presentation or those minutes have been
8 were given to the players? 8 produced but if they haven't I'll let your
9 A. Well, there's been a couple of 9 counsel know and make a request for those.
10 videos prepared to talk about. The concussion 10 MR. GOLDFEIN: They have been
11 protocol certainly I think is clear on the 11 produced. They have been produced.
12 risks. So, yes. 12 Repeatedly.
13 Q. When you say the risks, what do 13 Q. Okay. And the videos you
14 you mean? 14 mentioned, could you tell me about these
15 A. You just asked me a question about 15 videos?
16 the risks of repeated head injury. 16 MR. GOLDFEIN: And I might add,
17 Q. Okay. 17 you marked them as a potential exhibit
18 A. I think that the warnings have 18 for this deposition.
19 been clear that head injuries are serious and 19 MR. GUDMUNDSON: Okay. Good to
20 that they've got to be treated in a proper way 20 know. Thanks.
21 before a player is returned to play. 21 MR. GOLDFEIN: Okay. It is good
22 Q. Okay. The risk I had mentioned 22 to know.
23 was the risk of long-term neurological issues 23 A. Sorry. What's the question?
24 resulting from repeated head injuries. Is 24 MR. GUDMUNDSON: Could you read it
25 that the risk you're talking about? 25 back, please.

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1 (Record read.) 1 Detroit, Michigan June 5, 1997 bearing
2 A. Videos were prepared I think -- 2 production numbers NHL0218166 through
3 I'm not sure if it was the NHL or the NHLPA 3 NHL0218172, marked for identification as
4 but advising players about proper ways to 4 of this date.)
5 avoid concussion, helmet use, mouth guards. 5 BY MR. GUDMUNDSON:
6 What to do if you were diagnosed with a 6 Q. Mr. Burke, the court reporter has
7 concussion, what the symptoms were. I thought 7 handed you what's been marked as Exhibit
8 they were very thorough. 8 Number 1. I'm going to ask you some questions
9 Q. Did they talk about what would 9 about it. You can feel free to peruse the
10 happen if you didn't follow this protocol? 10 document, but I can tell you I'm only going to
11 A. They talked about the risk of 11 be asking you questions about the paragraph at
12 returning to play before you were asymptomatic 12 the bottom of the page ending number 170. You
13 and cleared by physician. 13 can see what's called a Bates number at the
14 Q. And what were the risks that were 14 bottom. And the one ending 170, there's a
15 discussed in the videos if you know? 15 little section called Concussions. And it
16 A. I don't recall the precise 16 goes over to the top a little bit on the next
17 language. It was more like this is the way to 17 page and I'm going to ask you about that.
18 deal with a concussion and it's important that 18 And, for the record, this is a
19 you follow these steps. 19 document that was produced by the NHL in this
20 Q. Okay. Do you know the years that 20 litigation. The first page bears the Bates
21 these videos were presented? 21 number NHL0218166. And I believe I've
22 A. No. 22 produced it exactly as it was produced to us
23 Q. Were they presented every year? 23 here.
24 A. I don't know that. 24 MR. GOLDFEIN: I guess you should
25 Q. Okay. Do you recall them -- do 25 indicate the last page so we have the
Page 75 Page 77
1 you have some, like, specific memory of seeing 1 parameters of the document.
2 the video, or do you have a specific memory of 2 MR. GUDMUNDSON: I can do that.
3 discussing the video with somebody? 3 The last page is 172.
4 A. I have a specific memory of seeing 4 (Document review.)
5 the video, yes. 5 Q. Ready?
6 Q. Okay. And do you know what 6 A. (Witness nods.)
7 organization you were with when you saw it? 7 Q. Okay. This document is a fax on
8 A. I don't. 8 front but it attaches something called Minutes
9 Q. Okay. Did you see it -- the video 9 of the Meeting of the General Managers Held At
10 in more than one year? 10 the Westin Hotel, Renaissance Detroit,
11 A. If I had to answer, like, I 11 Michigan, June 5, 1997 and you're listed there
12 don't -- I wouldn't say I could say with 12 as an attendee in your role as Vice President
13 certitude. Yes, I think I did. 13 and Director of Hockey Operations for the NHL;
14 Q. Okay. 14 is that correct?
15 A. I think it was used more than one 15 A. Correct.
16 year. 16 Q. Is this a standard form for these
17 Q. But you don't have any specific 17 types of meetings?
18 recollection of when that was. 18 MR. GOLDFEIN: Object to the form
19 A. No. 19 of the question.
20 Q. Okay. 20 A. There are documents produced like
21 MR. GUDMUNDSON: I'm going to mark 21 this for some of the meetings. I don't know
22 this one. 22 if they're for all of the meetings.
23 (Burke Exhibit 1, Minutes of the 23 Q. Okay.
24 Meeting of the General Managers Held at 24 A. I'd say most.
25 the Westin Hotel, Renaissance Center, 25 Q. Does the document look familiar to

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1 you? 1 Q. How is it used?
2 A. Yes. 2 A. I don't know.
3 Q. Okay. If you look at the bottom 3 Q. Do you know whose job it is to use
4 of the page ending Bates number 170 there's a 4 that concussion questionnaire?
5 section called Concussions. 5 A. Well, I was at the League at this
6 Do you see that? 6 point and this was the new protocol, but I
7 A. I do. 7 believe the team physicians were supposed to
8 Q. I'm going to read that. It says 8 administer this.
9 "Ms. Jones" -- first of all, who's Ms. Jones? 9 Q. Do you know -- was anybody in
10 Do you know? 10 charge of making sure the team physicians
11 A. Yes. She was a staff attorney 11 administered the questionnaire?
12 with the National Hockey League. Very 12 A. I don't know that. I'm sure there
13 talented. 13 was but I don't know that.
14 Q. Okay. Is she still with the 14 Q. Okay. Do you know who would know?
15 League? 15 A. No.
16 A. Nope. 16 Q. Someone at the League or someone
17 Q. Where is she now, if you know? 17 at the clubs?
18 A. Don't know. 18 A. One or the other. Someone would
19 Q. Okay. 19 know what the next step was.
20 Okay. The section reads: "Ms. 20 Q. Is there anybody at the NHL who's
21 Jones reviewed a four-part proposal relating 21 responsible for overseeing the team
22 to the care and evaluation of concussions, 22 physicians?
23 which the NHL team physicians had asked the 23 A. There is now, yeah.
24 general managers to approve. In order to more 24 Q. What do you mean "now"? Is this a
25 clearly document the circumstances rounding 25 new role?
Page 79 Page 81
1 concussions in the NHL and establish baseline 1 A. Well, when Ms. Jones took part in
2 conditions for NHL players who suffer 2 this he was working for the League.
3 concussions during the season, the team 3 Subsequently Julie Grand is in charge of this
4 physicians proposed the following steps: (1) 4 department, if you will, or this protocol.
5 adoption of a questionnaire specific to 5 Q. And she's an attorney with the
6 confession injuries; (2) further education of 6 League, correct?
7 trainers as to the proper diagnose and care of 7 A. Correct.
8 concussions; (3) review of films of each 8 Q. Did Ms. Jones hold the same
9 concussion by a small group of team physicians 9 position then as Julie Grand holds now?
10 to document the circumstances of each 10 A. I don't know if they were
11 concussion; and (4) neurological baseline 11 identical roles or not.
12 testing of all NHL players at training camp 12 Q. Okay. Number 2 is further
13 starting this fall." 13 education of trainers as to the proper
14 Did I read that correctly? 14 diagnosis and care of concussions.
15 A. Yes. 15 Do you know if this further
16 Q. Start with number 1. Adoption of 16 education ever took place?
17 a questionnaire specific to concussion 17 A. I don't. I know that there have
18 injuries. Was that done, to your knowledge? 18 been numerous steps to educate the trainers at
19 A. Yes. To my knowledge. 19 different meetings, their own meetings.
20 Q. Do you know when it was done? 20 Presentations by NHL physicians. But
21 A. No. 21 specifically after this meeting, no, I don't.
22 Q. Okay. Have you seen the 22 Q. How do you know about the meetings
23 questionnaire? 23 that you just testified to?
24 A. I did at one point. I have -- I 24 A. Because I know I got -- our team
25 couldn't tell you what it says. 25 medical trainer goes to meetings every year.

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1 I know our team doctors go to meetings every 1 for?
2 year. 2 A. No.
3 Q. When you're talking about "our," 3 Q. Okay. Who was in charge of that
4 you mean the Calgary Flames? 4 review, do you know? Do you remember?
5 A. Calgary Flames. 5 A. I do not.
6 Q. Your team physician, your team 6 Q. Okay. Number 4 is neurological
7 doctors go to meetings every year, where do 7 baseline testing of all NHL players at
8 they go? 8 training camp starting this fall.
9 A. It's usually in conjunction with 9 Do you know if that occurred?
10 the All-Star Game I believe. 10 A. One of these years I know there
11 Q. So this is a meeting that's a 11 was a dispute with the NHLPA over it.
12 formal meeting that they're required to 12 Q. Okay.
13 attend? 13 A. But baseline testing was done I
14 A. I believe so. 14 believe following this meeting before the
15 Q. And it's hosted by the NHL? 15 '97/98 season on at least those players who
16 A. I believe so. 16 were willing to participate.
17 Q. Is it hosted at the location of 17 Q. Was there ever a mandatory
18 the All-Star Game or somewhere else? 18 baseline testing employed for all players?
19 A. I believe so. And the NHL 19 A. There is now I believe.
20 physicians have met independently off site I 20 Q. Do you know how long the mandatory
21 know in the past, too. 21 baseline testing of all players has been in
22 Q. Okay. And do you know what 22 existence?
23 specific education was given to the trainers 23 A. I don't know.
24 about the diagnosis and care of concussions? 24 Q. Do you know who would know that?
25 A. I don't. 25 A. I don't know.
Page 83 Page 85
1 Q. Do you know who would know that? 1 Q. Okay. And we've been going for
2 A. I don't. I assume one of the team 2 over an hour and I can keep going, but another
3 physicians would know. 3 thing is if you ever want a break to step out
4 Q. Okay. Possibly Ms. Grand? 4 we can do that any time. I'm going to keep
5 A. Possibly, yeah. 5 going unless I hear from you or from your
6 MR. GOLDFEIN: Object to the form 6 counsel that they're interested --
7 of the question. 7 MR. GOLDFEIN: We can go for
8 Q. Number 3 is review of films of 8 another half hour.
9 each concussion by a small group of team 9 MR. GUDMUNDSON: Fine.
10 physicians to document the circumstances of 10 MR. GOLDFEIN: And then we'll take
11 each concussion. 11 a break.
12 Do you know if that review of 12 As long as the witness is okay
13 films was done? 13 with that.
14 A. I believe it was. 14 THE WITNESS: (Witness nods.)
15 Q. Okay. Were you involved in that? 15 MR. GUDMUNDSON: Mark that,
16 A. I don't know. I know that the 16 please.
17 teams were instructed to provide this. I 17 (Burke Exhibit 2, memorandum dated
18 don't know if it was that year. But I know in 18 May 19, 1998 bearing production number
19 the past I've seen or even authored a memo 19 NHL1353650, marked for identification as
20 instructing the teams to prepare their clips, 20 of this date.)
21 film clips of each concussion trying to 21 BY MR. GUDMUNDSON:
22 understand where they occurred, how they 22 Q. Mr. Burke, the court reporter has
23 occurred, and so on. 23 handed you what's been marked as Exhibit 2.
24 Q. Okay. Do you know how the League 24 That's a document -- a single-page document
25 identified which concussions they wanted film 25 bearing the Bates numbers NHL1353650 that was

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1 produced by the NHL in this litigation. Could 1 Q. Are you ready?
2 you take a minute to look at that and let me 2 A. (Witness nods.)
3 know when you're ready. 3 Q. First of all, do you know this
4 A. Just the one page. 4 document?
5 Q. Yes. No, I'm sorry. It's not a 5 A. Yes.
6 single page. I'm looking at one page. 6 Q. Okay. Is this looks to be a
7 MR. GOLDFEIN: Now I'm confused. 7 memorandum sent by you to all NHL general
8 What is the exhibit? 8 managers dated May 19, 1998; is that correct?
9 MR. GUDMUNDSON: Pull the first 9 A. Correct.
10 page off. You can hand that exhibit 10 Q. And I'm going to read the first
11 back to the court reporter, please, Mr. 11 couple of sentences. It reads: "As you may
12 Burke. 12 recall, we agreed at the June 1997 general
13 THE WITNESS: (Witness complies.) 13 managers' meeting to provide video clips of
14 MR. GOLDFEIN: I'm confused. What 14 certain incidents in hockey games to the NHL
15 is the exhibit? Is the exhibit just one 15 team physicians for use in their concussion
16 page? 16 study. Attached is a list of such incidents
17 MR. GUDMUNDSON: The exhibit is 17 involving your team for which we need video
18 just NHL1353650. 18 clips."
19 MR. GOLDFEIN: And the remaining 19 Did I read that correctly?
20 pages? 20 A. Yes.
21 MR. GUDMUNDSON: You can tear 21 Q. First of all, do you know what the
22 those off. 22 concussion study is?
23 MR. GOLDFEIN: That's a separate 23 A. Do I know what the concussion
24 document or the same document? 24 study is.
25 MR. GUDMUNDSON: I said you can 25 Q. Um-hum.
Page 87 Page 89
1 tear those off. Do you want to remark 1 A. Well, I would assume that was from
2 it? 2 a meeting in June '97. This is I believe the
3 MR. GOLDFEIN: I'm asking you the 3 start of the concussion protocol and the
4 question because I don't know whether I 4 working committee with the NHLPA I assume.
5 have an objection or not. I'm trying to 5 Q. Okay. And here you're attaching
6 get some information so I can tell 6 "a list of incidents involving your team for
7 whether I have an objection or not, but 7 which we need video clips."
8 you don't seem to want to communicate. 8 How did you identify the
9 The second document has a different date 9 incidents?
10 on it than the Burke 2 that you seem to 10 A. My recollection is the doctors
11 be indicating and I -- did you 11 identified the incidents and said these are
12 inadvertently put two documents together 12 where concussions were diagnosed. We want the
13 or is it one document or is it two -- 13 video clip of the concussion.
14 MR. GUDMUNDSON: I'm not going to 14 Q. So the doctors at all the clubs
15 sit and listen to this. I've said that 15 sent in the list to the League office; is that
16 it's the one page. 16 correct?
17 BY MR. GUDMUNDSON: 17 A. I believe so.
18 Q. Tell me when you're ready, Mr. 18 Q. Do you know how the doctors
19 Burke. 19 identified those incidents?
20 MR. GOLDFEIN: Then I'll object 20 A. I assume it's where they
21 conditionally on the grounds that it may 21 identified or diagnosed a concussion.
22 be an incomplete exhibit. 22 Q. Oh, so those were diagnosed --
23 You can go ahead and look it. 23 this is a list of diagnosed concussions, to
24 24 your knowledge?
25 BY MR. GUDMUNDSON: 25 A. I assume.

612.338.3376
Page 90 Page 92
1 Q. Okay. But you don't know for 1 NHL1656311, marked for identification as
2 sure? 2 of this date.)
3 A. No. 3 BY MR. GUDMUNDSON:
4 Q. Okay. Do you know who would know? 4 Q. Mr. Burke, the court reporter has
5 I mean, this is a long time ago? I'm not 5 handed you what's been marked Exhibit 3. It's
6 trying to stretch your memory. But do you 6 a document bearing the Bates number
7 know who would be involved or who would know 7 NHL1656311. Could you please give that a look
8 that? 8 and let me know when you're ready to discuss.
9 A. Some of the team physicians I 9 (Document review.)
10 would guess. 10 A. Okay.
11 Q. Who oversaw the concussion study? 11 Q. First of all, do you remember this
12 Anybody at the NHL office? 12 e-mail exchange?
13 A. At this point I'm guessing Kate 13 A. No. Well -- no. I remember -- I
14 Jones was the one who was calling in the 14 can remember anecdotally. I can't remember
15 information or getting the physicians 15 sending this e-mail, no.
16 together. 16 Q. Sure. What do you remember about
17 Q. Okay. 17 this situation?
18 A. She might have left by then. I 18 A. I had read something about Pellman
19 don't know. This is a year later. 19 and some -- and I knew he had worked for the
20 Q. Okay. Did you have any role other 20 Islanders and some problem with some testimony
21 than the one indicated on this document in the 21 he had given or something. It was a newspaper
22 concussion study? 22 article somewhere I read where Pellman was in
23 A. No. 23 some kind of hot water. And I said did we or
24 Q. You were just acting as a sort of 24 will we boot Pellman. And Daly's response was
25 collection for the -- collection point for the 25 he never had worked for the League.
Page 91 Page 93
1 videos? 1 Q. Okay. And he went on to write:
2 A. Correct. 2 "He's the Islanders' guy, but we don't consult
3 Q. Okay. You personally had no 3 with him."
4 further involvement. 4 Is that right?
5 A. This is approximately, if I'm not 5 A. That's what he wrote, yes.
6 mistaken, about 30 days before I left the 6 Q. Okay. Do you remember if the
7 National Hockey League. 7 article that you read about -- I believe this
8 Q. Okay. Were you ever asked for 8 is Dr. Elliott Pellman. Is that your
9 video clips or any other information about 9 understanding?
10 concussions in your role as a general manager 10 A. If that's the guy that was the
11 or otherwise? 11 Islanders' concussion guy, yes.
12 A. I think every year after this we 12 Q. Okay. And do you recall that the
13 had to submit video clips. 13 article that you read was about concussions?
14 Q. Of diagnosed concussions? 14 A. Something about the National
15 A. Yeah, I think so. 15 Football League, I think.
16 Q. Or of other hits as well. 16 Q. And his involvement in concussions
17 A. No. I think just diagnosed 17 with the National Football League?
18 concussions. 18 A. Yeah.
19 Q. Okay. 19 Q. Okay. Did you ever follow up on
20 A. My recollection. 20 this?
21 Q. Okay. 21 A. No.
22 MR. GUDMUNDSON: Mark that one, 22 Q. Okay. What was your concern
23 please. 23 specifically? Do you remember?
24 (Burke Exhibit 3, e-mail dated 24 A. No, I don't. I remember he was in
25 2/28/2007 bearing production number 25 some kind of hot water. I don't remember

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1 specifics. 1 Q. And you attended this as the GM of
2 Q. Okay. But you wrote: "Did 2 the Toronto Maple Leafs, correct?
3 we/will we boot Pellman," correct? 3 A. Correct.
4 A. Correct. 4 Q. Do you recall this meeting?
5 Q. So is it safe to say you were 5 A. I do.
6 sufficiently concerned you thought he should 6 Q. If you turn to page 7 on this
7 be fired if he was employed by the NHL? 7 document, there's a section called Concussion
8 A. I was raising the issue there's 8 Group Presentation and it talks about some of
9 some -- and not being evasive. I don't 9 the issues that we've talked about already
10 remember what it was I read. I remember it 10 today. And I'm going to go to the second
11 was not flattering to him and I thought he was 11 paragraph down -- well, first of all, let me
12 working with the teams. And that's all I 12 read the first paragraph. It reads: "Colin
13 remember. 13 Campbell introduced Bill Daly, Julie Grand,
14 Q. Understood. 14 Dr. Willem Meeuwisse, Dr. Paul Comper and Dr.
15 You can put that one aside. 15 Mike Hutchinson to provide background
16 A. (Witness complies.) 16 information on the Concussion Group and to
17 (Burke Exhibit 4, Minutes of the 17 present the group's findings."
18 Meeting of the General Managers Boca 18 Did I read the correctly?
19 Beach Club - Boca Raton, Florida March 19 A. Yes.
20 8-10, 2010 bearing production numbers 20 Q. Do you know what the Concussion
21 NHL0143203 through NHL0143225, marked 21 Group is?
22 for identification as of this date.) 22 A. I assume that's the Concussion
23 BY MR. GUDMUNDSON: 23 Group.
24 Q. Mr. Burke, the court reporter has 24 Q. Okay.
25 handed you what's been marked as Exhibit 4. 25 A. There are other physicians that
Page 95 Page 97
1 It's a document that was produced in this 1 have been involved since then or before then
2 litigation by the NHL. The first page bearing 2 but I assume this is the group that made the
3 the Bates number NHL 0143203 and the last page 3 presentation.
4 bearing the Bates number NHL 0143225. 4 Q. Okay. Below that it reads:
5 Could you take a minute to look at 5 "Julie Grand stated that the NHL established a
6 that. I can tell you that I'm going to be 6 Concussion Working Group in 1997 and became
7 directing your attention primarily to page 7 7 the first professional sports league to
8 where it starts Concussion Group Presentation 8 implement mandatory neuropsychological testing
9 and asking you a series on that and then the 9 at that time."
10 Head Shots Presentation on page 10. And 10 Did I read that correctly?
11 there's also a section called Hits to the Head 11 A. Yes.
12 at the end. 12 Q. Did that refresh your recollection
13 (Document review.) 13 whether the baseline testing was mandatory or
14 MR. GOLDFEIN: I'll object to the 14 not?
15 use of the document since it's not -- 15 A. I think I gave you an accurate
16 it's unsigned set of minutes. 16 answer on it before. My recollection is it
17 (Document review continuing.) 17 was mandatory from the get-go but there was
18 Q. You ready? 18 some objection from the NHL Players'
19 A. Yep. 19 Association. They've got some different
20 Q. Now, this document on the front 20 issues on privacy matters and so on. I don't
21 page indicates it's the minutes of the meeting 21 know if it was that year but I know at one
22 of the general managers, Boca Beach Club, Boca 22 point it was mandatory but not every player
23 Raton Florida, March 8-10, 2010. 23 participated in it. Now it's mandatory and
24 Did I read that correctly? 24 every player participates. My guess is that
25 A. Correct. 25 they had some incomplete findings here.

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1 But... 1 physician, prior to the start of the year on
2 Q. Okay. And it goes -- Ms. Grand 2 how we wanted things done. And then you would
3 goes on to explain that there's 3 see the physician on a game night, you'd walk
4 neuropsychological testing to conduct 4 down, say, you know, How Joe Smith's knee.
5 pre-season baseline testing and followup 5 How's this guy, he can't play because his eye
6 testing on players diagnosed with concussion. 6 is shut. Is he going to be able to play in a
7 Do you see that? 7 couple days. Just a general discussion about
8 A. Yep. 8 player health.
9 Q. Do you know where this information 9 Q. Okay. So you had a general
10 is kept or how it's used, this baseline 10 dialogue going with the team physician about
11 testing and follow-up testing? 11 you said how you wanted things done. Is that
12 MR. GOLDFEIN: Object to the form 12 correct?
13 of the question. 13 A. No, that was very specific. At
14 A. I don't. 14 the start of the season it was very specific.
15 Q. Okay. Is that all managed -- 15 Q. Okay. You had a specific meeting
16 maintained at the League level? 16 with the team physician about how you want
17 MR. GOLDFEIN: Object to the form 17 things done?
18 of the question. 18 A. And my role is the standard of
19 A. I don't know. 19 care that I expect my team physician to
20 Q. Okay. Did you ever ask anybody 20 provide the players is the patients are the
21 where this information was going? 21 patient, even though he's employed by the
22 A. Nope. 22 team. I want all League rules followed to the
23 Q. Did you ever discuss the -- any of 23 letter of the law. And my final for return to
24 this baseline testing or follow-up testing 24 play is if this player were you son would you
25 with anybody at the Maple Leafs? 25 clear him to play. Not under this protocol or
Page 99 Page 101

1 A. Yeah. 1 your common sense or whatever, before you put
2 Q. What did you discuss? 2 my player back in you've got to tell me if
3 A. Well, I don't know if the team 3 this were your son would you put him back in.
4 physician kept these records. I assume 4 So I think on my teams I've always
5 because of the return-to-play protocol that 5 had a little higher standard than most teams.
6 the team physician has to have access to it. 6 But tell the physician there's League rules on
7 I don't know if the League maintains it. I 7 carrying certain kinds of medication. There's
8 don't know if the union maintains it. I don't 8 League concussion protocol. You will follow
9 know if the Concussion Working Group maintains 9 all League directives to the letter of the law
10 it. All I know is we supported it. 10 or your job is at peril and you will not
11 Q. Okay. Well, let me ask this 11 return players to player unless you would
12 question. It might help with some 12 return your son to play. And, you know,
13 foundational understanding. 13 that's very specific as to that. The player
14 In your role as general manager 14 is the patient.
15 for any of the clubs, what was your role or 15 Q. Does that include as to
16 supervisory interaction with the team 16 concussions or suspected concussions?
17 physician? 17 A. Absolutely.
18 MR. GOLDFEIN: Object to the form 18 Q. Was there ever a situation where a
19 of the question as compound. But you 19 player was hit in the head and it seemed to
20 can answer if it's the same as to all 20 you that the player was dazed or knocked out
21 clubs. 21 and they did not get a diagnosed concussion?
22 A. Yeah. With regard to the teams 22 MR. GOLDFEIN: Object to the form
23 I've worked for, I always had a general 23 of the question.
24 discussion with my top physician. There's 24 A. Just one that I remember.
25 normally more than one, but with your lead 25 Q. Who was that?

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1 1 concussion protocol and how it's followed
2 Q. What happened in that situation? 2 through at the club level?
3 A. We were playing in Boston and he 3 A. Yeah.
4 got hit behind the net by Zdenko Chára who was 4 Q. Okay. That's probably a better
5 a much bigger player. And he appeared to be 5 definition than "stuff." But that's very
6 wobbly and went back to the bench. The 6 helpful.
7 trainer went right to him and spoke to him. 7 Did you ever talk to your players
8 He did not leave the bench. He came back and 8 about medical issues, about what to report?
9 played. He scored the game-winning goal in 9 A. Yes.
10 Boston. And I went down after the game and 10 Q. Tell me about that.
11 gave the trainer shit. I said Why was he 11 A. We have a meeting at the start of
12 allowed -- it looked to me anyway like he had 12 the year with the players when I was a general
13 a concussion. And he said I went right down 13 manager. I don't do it now. And it's one of
14 to him and talked to him. And he said what 14 the things is don't be a hero with injuries in
15 happened was when he hit the glass he lost 15 general but in particular with head injuries.
16 hearing for a couple -- just the concussion 16 Report them.
17 with the glass -- poor choice of terms -- the 17 Q. Has that -- sorry.
18 contact with the glass he lost hearing. And 18 A. Go ahead.
19 he was having trouble hearing. He went back 19 Q. Has that always been your practice
20 to the bench and he said to the trainer, My 20 as a general manager?
21 head's fine. I just couldn't hear for a 21 A. Yes. But with a heightened
22 minute. 22 awareness on head injuries. If I had -- I
23 And so the trainer looked at his 23 couldn't, but if I could find my notes from my
24 eyes, asked him the score, did the, you know, 24 first speech as a rookie GM to the Hartford
25 usual, you know where you are, what the score 25 Whalers it would have included report injury
Page 103 Page 105

1 game is. He looked fine. No symptoms. And I 1 but I wouldn't have had the same sensitivity
2 talked to the player after that. He had no 2 to head injuries that I have now.
3 symptoms that I could see, I'm not to doctor 3 Q. Okay. Because I remember you
4 but -- and the League called me the next day 4 testified earlier that when you played if you
5 and gave me shit and said How come he was 5 got your bell rung, as you put it, that you
6 returned to play. And I explained it. So -- 6 really would not say anything, you would keep
7 Q. When was this? I'm sorry. 7 playing the game and that was just the way it
8 A. Well, I've been gone from Toronto 8 was then. Do you remember that?
9 tore two and a half years. I'd say four years 9 A. Yes.
10 ago. 10 Q. At what point did it change where
11 Q. Okay. 11 you were addressing concussions with your
12 A. Five years ago. 12 players and telling them not to be a hero?
13 Q. Who called you from the League 13 A. Well, by '90 -- certainly by the
14 office? 14 time I left the League and by '98 it was
15 A. Julie Grand. 15 something we were aware of. I couldn't tell
16 Q. Julie Grand. 16 you exactly when it changed.
17 Is Julie Grand in charge of the 17 Q. Okay.
18 concussion stuff at the NHL? 18 A. I doubt you'll interview any
19 MR. GOLDFEIN: Objection to the 19 player from my era and get a different story.
20 form of the question. 20 Q. Okay. Did you say from your era?
21 A. She's the woman that coordinates 21 What do you mean by that?
22 it with the general managers, yes. 22 A. From when I was playing. Playing
23 Q. Okay. 23 in the late '70s, pro hockey. I don't think
24 A. I don't know who's in charge. 24 you'll get a different answer from anyone.
25 Q. You mean, like, in terms of the 25 Q. You think the whole culture kind

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1 of shifted around the '90s, the late '90s when 1 A. It's always been my standard. If
2 you were in the League? 2 he's in any doubt he doesn't go back.
3 A. Yes. 3 Q. Can you go back to page 7 of this
4 Q. Do you know what caused that 4 document, please. And go a couple of
5 shift? 5 paragraphs down starting where it says "Dr.
6 A. I don't. But I know the NHL has 6 Meeuwisse informed..."
7 been the leader in it. 7 Do you see that?
8 Q. Okay. Why do you say that? 8 A. Yes.
9 A. Because we were the first team to 9 Q. It says: "Dr. Meeuwisse informed
10 do baseline testing and I know that the NFL, 10 the general managers that the number of
11 Major League Baseball, the NBA have all 11 concussions in the NHL had remained fairly
12 approached us about our program and how to 12 consistent between the '72 and '74 season
13 copy it in some way. 13 since the 2006/7 season and that the number of
14 Q. Okay. And did the Concussion 14 man games lost to concussion had declined
15 Group ever create a report on their findings? 15 during this period."
16 A. Like a written report? 16 Did I read that correctly?
17 Q. Yeah. 17 A. Yes.
18 A. I think they just reported to the 18 Q. Do you know if this is just
19 GM meeting and the board. 19 diagnosed concussions?
20 Q. Okay. And so what was the charge 20 A. I don't know.
21 of the Concussion Group in your view? 21 Q. Okay. But from your role at the
22 MR. GOLDFEIN: Object to the form 22 club level when you were reporting to the
23 of the question. 23 League office concussions, you only went with
24 A. I'm sorry. I'm not being evasive 24 diagnosed concussions, correct?
25 but I don't understand the question. What do 25 A. I think the request for video
Page 107 Page 109

1 you mean "the charge"? What were they charged 1 clips was based on diagnosed concussions but I
2 with? 2 could be wrong on that.
3 Q. Yeah. What were they tasked to 3 Q. Would Julie Grand know that?
4 do? 4 A. Yes. I assume so.
5 A. To figure out how these injuries 5 Q. Okay. Could you go to the next
6 occurred. To figure out a sensible and safe 6 page, please. Page 8.
7 return-to-play protocol and mandate that at 7 A. (Witness complies.)
8 the team level. 8 Q. Let's see. It would be the one,
9 Q. And whose job you was it at the 9 two -- fourth paragraph down. It says: "Dr.
10 League level to make sure that return to play 10 Meeuwisse informed the general managers..."
11 and other parameters of the concussion 11 Do you see that?
12 protocol were carried out? 12 A. Yes.
13 A. I would assume Julie, but I would 13 Q. I'm going to read that.
14 say to the physicians too, also. 14 It says: "Dr. Meeuwisse informed
15 Q. Okay. I think you also testified 15 the general managers that the League did not
16 that you took it upon yourself to take to the 16 mandate a period following concussions during
17 physician to make a sure that they were being 17 which players had to be withheld from play,
18 followed as well, correct? 18 but that players had to be symptom free both
19 A. Yes. 19 at rest and upon exertion and cognitively at
20 Q. Okay. 20 baseline before they would be cleared to play
21 A. I did. And that's in the public 21 and even then they should continue to be
22 domain, by the way. That conversation I've 22 monitored for symptom onset moving forward."
23 had with the doctor has been reported publicly 23 Did I read that correctly?
24 a number of times. 24 A. Yes.
25 Q. Okay. 25 Q. Do you know if there's ever been a

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1 mandatory period where a player has to be 1 A. These guys are assets for us.
2 withheld from play following a concussion? 2 They're important. Why would we put a player
3 MR. GOLDFEIN: Object to the form 3 back in who's at risk of exacerbating an
4 of the question. 4 injury, whether it's a knee, shoulder or head?
5 A. I think they have to be withdrawn. 5 Why would he let him return to play?
6 But the return to play, players have different 6 Q. Well, I think that if -- you know,
7 recovery levels so, no, I don't think there's 7 let's go back to the era you talked about when
8 a mandatory time. Not that I'm aware of. 8 you were playing.
9 Q. Okay. And who is in charge at the 9 A. No, forget that era. In this era
10 club level for clearing a player to play? 10 where we know more. Why would I put a player
11 A. Our team physician. 11 back in that's hurt?
12 Q. Okay. Is it his or her sole 12 Q. Okay. You're talking about this
13 discretion? 13 era has changed.
14 A. Well, the player could object. 14 A. Yeah.
15 Q. If the player doesn't want to play 15 Q. Okay.
16 or the player does want to play? 16 A. I know we weren't smart about
17 A. Well, the player always has a 17 these things. I know that. Back when we
18 right to always get a second opinion and 18 played.
19 object if he doesn't agree with the doctor's 19 Q. Well, I'm not just talking about
20 analysis or diagnosis. The doctor says, Look, 20 the players though. I mean, what about the
21 you're good, get back in there, and the kid 21 general managers back then? Were they smart
22 says I don't feel right, he has got a right to 22 about that, too?
23 get a second opinion. There's a safety valve 23 A. No one ever told me to go back in
24 in this so the team can't force a player back 24 and play hurt. Not once. Because I didn't
25 if he doesn't want to go back. 25 tell them I was hurt.
Page 111 Page 113

1 Q. Do you think players feel free to 1 Q. Okay.
2 make those kinds of objections? 2 A. I can say my college coach never
3 A. They do no my teams. 3 once said get out there and play when you were
4 Q. They do? 4 injured. I just didn't tell them when I was
5 A. Yeah. 5 injured.
6 Q. Okay. What if the player wants to 6 Q. Why not?
7 play? What if the doctor says You got to stay 7 A. Because that's what we did.
8 out another three games, and they say No, put 8 Q. Were you afraid of losing your
9 me back in, I got a second opinion and it's 9 spot on the team?
10 my -- 10 A. Partly.
11 A. Then we'd get a third opinion. 11 Q. Okay.
12 There as tie-breaker, too. The player's not 12 A. Partly I wanted to play.
13 going back in unless our doctor says he can go 13 Q. Were you afraid of what you
14 back in. That's for ankle, shoulder, knee, 14 teammates would think of you if you said you
15 head. He's not going back in unless the 15 were hurt and couldn't play?
16 doctor tells us he's clear to play. 16 A. I think my teammates knew about my
17 Q. And it's the team physician's 17 painful threshold, that if I said I was hurt
18 prerogative to enforce that. 18 and couldn't play they'd respect that. It
19 A. It's the team physician's 19 wasn't that. It was I wanted to play. And,
20 prerogative to enforce that. 20 yeah, at the end of the day when you're
21 Q. Okay. 21 playing pro hockey your job is important. But
22 A. We have no interest in putting an 22 I wanted to play.
23 injured player back in. We have no interest 23 Q. Do you think there's a
24 in that. 24 distinction, even during that era or in the
25 Q. Okay. 25 present era, between head injuries and knee

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1 injuries? 1 hurt back in the day. You just played. But
2 A. Sure. Of course there is. 2 now if you said to the guy I'm good to go and
3 Q. I mean, not just in terms of the 3 he saw the signs, you were holding your head
4 physiology, but in terms of the player's 4 or the protocol was given to physicians and
5 willingness to record it? 5 the trainers, they're not going to let you
6 A. I can't -- I tell the players 6 back on the ice.
7 this. I can't fix your head. I can fix your 7 Q. As of 1998?
8 knee. The risk of a player going back in with 8 A. It's evolved. It started in '97.
9 a knee injury -- we're still not going to let 9 It's evolved. We've tried to keep pace with
10 him do it -- but the risk of doing it, we can 10 the science. And to me it's not -- the knee
11 fix it. I can't fix that. I tell the players 11 and the head are not the same. The physician
12 that. I can't fix your head. Let's get this 12 is not going to treat them the same.
13 right. 13 Q. In what way are they not the same?
14 Q. But let's talk about the era you 14 A. They can fix a shoulder. They can
15 played in. Or the era prior to when things 15 fix can a knee.
16 changed. If a player's knee is mangled either 16 Q. Um-hum.
17 by a skate or he twists it or something, he 17 A. So a guy says, Look, my shoulder's
18 physically can't skate, correct? 18 sore, but I want to go. The doctor checks it
19 A. Correct. 19 structurally. He says, Well, there's a little
20 Q. During that situation, correct? 20 risk, but, yeah, if you think you can go,
21 MR. GOLDFEIN: This is a 21 let's go. So we'll take a little risk.
22 hypothetical? 22 Q. Um-hum.
23 Q. The same player, body below the 23 A. In a non-threatening injury
24 neck is completely fine, gets a concussion 24 situation -- like a hip pointer. Okay? So
25 that nobody can see. They could fake that, 25 you got a hip pointer. It's a calcium deposit
Page 115 Page 117

1 couldn't they? They could fake that they were 1 on your hip. Hurts like a bastard. Can't get
2 okay? 2 worse. Can't cripple you. It just hurts when
3 MR. GOLDFEIN: Objection. 3 you get hit. So if a player asks to get an
4 A. In my era? 4 injection so he can play with a hip pointer,
5 Q. Yeah. 5 we'll give him an injection. If a guy's got a
6 A. Yeah. 6 sore toe from blocking a shot. If a guy's
7 Q. Well, in any era. 7 head's not right, there's nothing you can do
8 A. No. I don't think they can now. 8 to help him. He doesn't play.
9 Q. Why not? 9 Q. So it almost sounds like you're
10 A. Because I think there are visible 10 testifying -- and don't let me put words in
11 signs of concussion and I think we've got a 11 your mouth -- that a head injury is more
12 good protocol. We tell our -- we know the 12 severe than a hip pointer.
13 players are tough. 13 MR. GOLDFEIN: Objection to the
14 Q. Uh-huh. 14 form of the question.
15 A. I tell the doctor. I say, Look, 15 A. It has to be treated differently.
16 you got to see through this. You got to do 16 A hip pointer is what we call a pain threshold
17 more than take this player's word for it. You 17 injury. A sore toe from a blocked shock is a
18 got to see through when he says he's ready to 18 pain threshold injury. Even if the player is
19 go. You got to check his shoulder's ready, 19 numb, he cannot possibly hurt that injury
20 his head's ready. The player saying, Hey, 20 worse playing with it. Even if he gets hit on
21 Doc, I'm good to go, that ain't good enough 21 that same toe with a puck. So it's a pain
22 anymore. 22 threshold injury. That's one thing.
23 Q. You say "anymore." Like since 23 A joint injury or something that
24 when is that not good enough? 24 can get hurt worse, yes. Different heightened
25 A. You never told anyone you were 25 sensitivity. Head injury, I think the most

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1 heightened sensitivity of all. Certainly on 1 Q. Why not? It's a blow to the head;
2 my teams. 2 isn't it?
3 Q. Um-hum. And so what happens if -- 3 A. If he gets hit it's a blow to his
4 what do you tell the players will happen if 4 head, yes.
5 you play with a concussion that hasn't healed? 5 Q. Okay. And what is the distinction
6 A. That the doctors tell us a player 6 between telling one player to avoid that hit
7 who's not through the protocol that gets 7 and telling another player not to avoid that
8 injured can have a far more serious 8 hit?
9 concussion. 9 A. The distinction would be the role
10 Q. What about long-term neurological 10 of fighting in our game.
11 issues? 11 Q. Okay.
12 A. The science is incomplete on the 12 A. And the apparent incongruity of
13 long-term neurological issues. 13 those two things is not -- there's no tension
14 Q. And that's based on what was 14 there in my mind.
15 presented to you the general managers' 15 Q. Okay.
16 meetings? 16 A. So we think the presence of our
17 A. That's correct. 17 fighting in our game, as agreed by the NHLPA,
18 Q. Do you ever talk to your coaches 18 is a deterrent to other types of conduct
19 or your players about avoiding head injuries 19 that's far more dangerous. Therefore,
20 on the ice? 20 fighting, which is half of what it was five
21 A. Yes. 21 years ago, six years ago, it's half of what it
22 Q. And what do you say? 22 was. In six years it's dropped by 50 percent.
23 A. Get out of the way if you see it 23 We want that amount of fighting to remain in
24 coming. Don't -- I had this conversation a 24 the game. The amount of fighting has dropped.
25 year ago with Johnny Gaudreau, one of our 25 The use of fighting as a tactic against skill
Page 119 Page 121

1 smaller players. We were playing in a rookie 1 players has dropped and it's down to a very
2 game. And he took a hit that he didn't have 2 small level. And we want that level to
3 to take. He passed the puck, the defenseman 3 continue.
4 came across and hit him in the head with a 4 Q. But if fighting prevents injury,
5 glove. And after the game I said to him, "Why 5 wouldn't you want more fighting?
6 didn't you stop?" 6 A. If fighting prevents injury -- I
7 And he said, "Well, I didn't want 7 think fighting deters certain kinds of
8 my teammates to think I'm afraid." 8 conduct. And, no, we don't want more
9 I said, "I don't give a shit what 9 fighting. We don't want more fighting.
10 your teammates think. You're a small guy. 10 Fighting -- the amount of fighting has dropped
11 Don't ever take any contact to your head or 11 to a much smaller level, which has been
12 upper body that you don't need to take. Don't 12 engineered by rule changes in large part and
13 worry about what your teammates think. They 13 by the evolution of the game. And so even the
14 know the fact you're playing out here at your 14 people that support fighting, like the NHLPA
15 size, you're brave. Just get out of the 15 and like certain people in management like
16 away." 16 myself, we don't want to see that number of
17 You talk about being alert, being 17 fights go up. We want to see it stay where it
18 headsup, not watching your pass. There's a 18 is. Or continue to decline.
19 lot of things a player can do to be more 19 But the fact is we see it as an
20 defensive and not get hurt. We talked about 20 important deterrent to certain kinds of
21 those things. 21 conduct that are dangerous to players.
22 Q. What about fighting? Do you tell 22 Q. Are there certain players on your
23 them not to fight? 23 teams that you expect to fight?
24 A. No, I don't tell them not to 24 A. Yes. If the situation calls for
25 fight. 25 it, yes.

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1 Q. Okay. And you talk to your 1 Did I read that correctly?
2 coaching staff and make sure that that player 2 A. Okay. Sorry. I was on the -- I
3 knows that they're expected to fight if the 3 was at the very top of the page. Mr. Meagher
4 situation calls for it under the circumstances 4 showed --
5 you just testified -- 5 Q. I'll read it again.
6 A. When I was a general manager I 6 Actually --
7 would have had that conversation, yes. Not 7 A. I can read it.
8 now. 8 Q. Okay.
9 Q. Because you're not the general 9 A. Okay.
10 manager. 10 Q. When he talks about legal hits to
11 A. I'm in a different role. 11 the head, do you know what he's talking about
12 Q. Right. Okay. 12 here?
13 THE WITNESS: If you're asking 13 A. Yes.
14 about a break, I could use a break. I 14 Q. What?
15 could use a washroom break here. 15 A. A legal body check that includes
16 MR. GUDMUNDSON: Oh, let's take a 16 contact to the head.
17 break. 17 Q. Is that still legal to this day?
18 THE VIDEOGRAPHER: The time is 18 A. 2010, no. Some of them would not
19 11:16. We're going off the record. 19 be. But some would be still.
20 (Recess taken.) 20 Q. Which ones would be and which ones
21 THE VIDEOGRAPHER: The time is 21 wouldn't be?
22 11:33. We're back on the record. 22 A. Well, you're allowed to make full
23 BY MR. GUDMUNDSON: 23 body -- the best example I can give you
24 Q. Welcome back, Mr. Burke. We just 24 without standing up, you're carrying the puck,
25 took a short break. 25 you're bent over, you've got the puck, and I
Page 123 Page 125

1 I'm going to ask you just a couple 1 come right through you. No charging. Just I
2 more questions on Exhibit Number 4 if you have 2 stand you up at the blue line and just drop
3 still have that in front of you. If you would 3 you. So I make a frontal hit. I get my
4 turn to page 12 of 23. And once you're there, 4 contact with your head but also your shoulder,
5 the first full paragraph right to the second 5 knock you flying backwards, that's a legal
6 full paragraph where it says "Mr. Meagher 6 hit. Includes contact to the head.
7 showed the group..." 7 Q. Even if the head is the primary
8 A. Mr. Murphy? 8 point of contact.
9 Q. No. 9 A. Nope. That's a different penalty
10 A. Which page? 10 now. We've differentiated that hit. What I'm
11 Q. Page 12 of 23. 11 talking about here was not the primary point.
12 A. Oh, the first -- the top of the 12 It's a full body check. Your head happens to
13 page. Okay. 13 be in the way.
14 Q. Yeah, I'm sorry. 14 Q. How do you differentiate the two?
15 A. Yep. 15 A. I think it's -- well, nothing's
16 Q. "Mr. Meagher showed the group..." 16 easy. I was going to say it's easy.
17 Do you see that? 17 Nothing's easy in hockey because it happens at
18 A. Yep. 18 such high speed. But what the League has done
19 Q. Okay. It reads: "Mr. Meagher 19 through supplementary discipline with union
20 showed the group video of legal hits to the 20 backing and with the teams' backing, of
21 head which had resulted in injury and legal 21 course, we want to eliminate head shots where
22 hits to the head which had not, commenting 22 the head is targeted or the principal point of
23 that 70 percent of players entering the NHL 23 contact. Principal point of contact and the
24 came from development leagues that had 24 head I described to you would be your whole
25 penalties for head hits." 25 body. I got your whole body. Maybe made

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1 contact with your head first, but I didn't 1 A. We talk about it in training camp
2 target your head. I went right through you. 2 as far as how it's played in the pros. We do
3 We want that hit. 3 it a our prospect camp. So these players
4 Q. Okay. 4 would come to a prospect camp in the first
5 A. So that's legal hits to the head. 5 week of July usually, the second week of July.
6 We allow, even in the current -- even with 6 So your drafted college players, your drafted
7 Rule 48 as amended, you can still have a legal 7 OHL players, your drafted European players,
8 check that involves contact to the head. 8 whatever their rules are, we talk about how we
9 Q. Okay. And you say we want that 9 play the game at the NHL level. How to avoid
10 type of checking. Is that yourself included? 10 a hit, how to give a hit. And we explain to
11 A. Yes. 11 them, yeah, this is a higher standard, that
12 Q. Okay. And this goes on to say 12 hit you that you didn't have to worry about in
13 that 70 percent of players entering the NHL 13 college hockey you have to worry about it in
14 come from development leagues that had 14 this league.
15 penalties for head hits. Is that penalties 15 Q. And you also have to change the
16 for all head hits so that such that head hits 16 way you check other players, correct?
17 are completely out of those leagues? 17 A. You would actually check -- you
18 A. The rule -- well, you see in 18 throw more checks under our system.
19 college hockey. The rule there is contact to 19 Q. Okay. Including ones that involve
20 the head results in a penalty, an ejection I 20 contact with the head, correct?
21 think if it's a hard enough hit. We think 21 A. If they are otherwise legal, yes.
22 that rule -- the OHL has a rule like it. We 22 Q. We talked a little bit before the
23 think that hit is -- that rule or that 23 break about a player on your team who was a
24 language has substantially reduced or 24 smaller player on your team who was a smaller
25 eliminated hitting in those leagues to a point 25 player and who got hit in the head and you
Page 127 Page 129

1 below which we don't want to go. We want to 1 told him to avoid that and don't do that, you
2 keep physicality in the game. 2 know, don't be a hero. And then we sort of
3 The balance we've struck is we are 3 made that contrast, the players that you
4 going to eliminate a body check that's aimed 4 expected to go on and fight. And I appreciate
5 at a guy's head. That's principal targeting. 5 the fact you testified you're not a scientist
6 Principal point of contact. You've seen the 6 but I want to ask you this question anyway.
7 videos of the Matt Cooke hit on Savard. 7 Do you know if there's a
8 That's -- he didn't hit any other part of his 8 difference in the way the brain reacts to a
9 body but his head. We want that hit out. We 9 hit if you're big versus a little guy?
10 changed the rule to reflect that. 10 MR. GOLDFEIN: Object to the form
11 At this time in 2010 would still 11 of the question.
12 be legal hits to the head. And he can still 12 A. I don't. I know in one of these
13 show that video today. There are still checks 13 presentations from the Concussion Working
14 that we allow that include contact to the 14 Group where they analyzed the hits, they said
15 head. 15 there's no distinction, I think in one of
16 Q. So what about 70 percent of the 16 them, that there's no distinction.
17 players would come into the League from 17 Q. Okay.
18 development leagues where head hits are not 18 (Burke Exhibit 5, e-mail dated
19 allowed in any way? How are they -- do they 19 5/21/2010 bearing production number
20 have to get acclimated to the NHL game? Is it 20 NHL1632649, marked for identification as
21 a different animal? 21 of this date.)
22 A. Yes. 22 BY MR. GUDMUNDSON:
23 Q. And how do you do that? Do you 23 Q. Mr. Burke, the court reporter has
24 train them to take a hit to the head or how do 24 handed you what's been marked as Exhibit 5.
25 you handle that? 25 It's a document produced by the NHL in this

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1 litigation bearing the Bates number 1 my comment was Tell these pukes, the doctors
2 NHL1632649. It's a single-paged document. 2 that aren't in the game, it's a contact game,
3 Could you please take a look at that and let 3 injuries will occur.
4 me know when you're ready. 4 Q. Okay.
5 (Document review.) 5 A. And when I talked about the Green
6 A. Yep. 6 Peace pukes later, writers that won't write
7 Q. Do you recall this e-mail 7 about hockey, but when there's a major injury
8 exchange? 8 love the weigh in. TV people that don't care
9 A. Yes. 9 about our game but when there's a major
10 Q. If we go down to the bottom 10 problem want to weigh in and get airtime out
11 there's an e-mail from you to Julie Grand and 11 of it. They're outside the game. They're
12 you were with the Maple Leafs at this time 12 Green Peace pukes.
13 based on the domain of your e-mail address. 13 And if I should apologize to
14 A. Yes, I was. 14 anybody for that terminology, I should
15 Q. You wrote: "Hello, Julie. I see 15 apologize to the people who are real Green
16 the concussion summit in Rochester. Are you 16 Peace members.
17 attending? Tell these pukes it's a contact 17 Q. Okay.
18 sport. Injuries will occur." 18 A. Not to the pukes.
19 Did I read that correctly? 19 Q. Well, certainly, I don't expect
20 A. Yes. 20 you to apologize to anybody. This is just a
21 Q. What did you mean by "Tell these 21 document in my opinion --
22 pukes it's a contact sport. Injuries will 22 A. This is basically saying these
23 occur"? 23 doctors -- it's a concussion summit. A lot of
24 A. Well, there -- I'll have to 24 them won't have anything to do with a full
25 apologize at some point. I'm pretty sure it's 25 contact sport. We play a full contact sport.
Page 131 Page 133

1 not the last time I'm going to have to 1 It's why most of us play the game. It's why
2 apologize for my choice of language if I'm not 2 most of us took it up. It's a full contact
3 mistaken. 3 sport. It's not swimming. It's not
4 This -- I'll tell you the origin 4 gymnastics. It's a full contact is sport.
5 of the e-mail first. I read in Sports 5 Injuries will occur. Tell these guys that.
6 Business Daily that they were having a 6 So that's all it was. She said, No, he wasn't
7 concussion Summit in Rochester. And so I sent 7 going to it. I don't know if she did or not.
8 it to Julie as our contact on that, are you 8 Q. Okay. But I think you testified
9 attending. It turns out she did not know 9 earlier that in college and in the OHL they
10 about that one. I think we might have 10 don't have -- I guess what you would call full
11 attended as it turned out. 11 contact. They don't allow any hits to the
12 And I just said Tell these pukes 12 head at all. Is that correct?
13 it's a contact sport. I'm probably more 13 A. They do not allow a body check
14 guilty than most GMs, but you'll see reference 14 that results in contact to the head. Now, if
15 Green Peace pukes and other pukes and tree 15 you watch college hockey, which I'm guessing
16 huggers. And, I mean, the fact of the matter 16 you do, they can't possibly call -- if you see
17 is there are a lot of people in our view that 17 54,000 hits a year. So go to the WCHA. If
18 are outside the game that want to weigh in on 18 you watch their games they don't call head
19 these things where we think people inside the 19 contact fouls on at least three dozen hits in
20 game have a better understanding of the 20 the game that involve contact to the head.
21 issues. So a lot of doctors will show up at a 21 They're talking about a big hit that involves
22 summit like that and not care that hockey is a 22 contact to the head. Not primary contact but
23 full contact sport. And say, Well, got to 23 they let a lot of hits to the head go. A lot
24 stop playing hockey, there's concussions. 24 of them. But they're trying to go after the
25 Well, those people are outside the game. So 25 ones where they think the head is part of the

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1 target. So a player can make a big open-ice 1 MR. GOLDFEIN: Objection to the
2 hit that we like, he can get ejected for that 2 form of the question.
3 hit in college hockey. 3 A. I won't let you put words in my
4 Q. But that's against the rules in 4 mouth.
5 college. 5 Q. Sure.
6 A. Correct. 6 A. But let me try and answer that.
7 Q. Whether they're calling it or not, 7 I think those rules, which are
8 correct? 8 well intended I'm sure, have taken a great
9 A. Correct. 9 deal of physicality out of the game. What's
10 Q. And you have to -- I believe you 10 distinctive about our game is the amount of
11 testified that you have to train the players 11 physicality we have.
12 coming in from these leagues at the beginning 12 Q. Um-hum.
13 how to take a hit and how to give a hit, 13 A. The balance we've tried to strike,
14 correct? 14 and I think we're striking it, I think we're
15 A. Correct. 15 getting it right, is how do we keep this
16 Q. Do you know who Chip Burke is? 16 intensely physical game physical and take out
17 A. Yes. 17 the circus shit. Take out the head shots. I
18 Q. Who's Chip Burke? 18 think the price they've paid in college hockey
19 A. Chip Burke is from a famous Boston 19 and in the OHL in an effort to protect players
20 family of about ten kids. He's not related. 20 has eliminated a lot of the hitting in those
21 He was the Pittsburgh Penguins physician for 21 games in my view. And I think it's
22 years and was a pioneer in this area on head 22 hypocritical that they say, Well, we call body
23 injuries. He's one of the first guys that 23 checks that result in head contact. They
24 said we gotta start looking at this. 24 don't. They call a small percentage of them.
25 Q. And do you know Chip Burke 25 They'll let a lot of hits go. And I'll go to
Page 135 Page 137

1 personally? 1 a game with you if you want. The University
2 A. I do. I like him. 2 of Minnesota game watch. And you'll see a
3 Q. Okay. 3 player get body checked and there'll be
4 A. I actually know a couple of his 4 significant contact with his head as he
5 brothers, too. 5 finishes in the corner and they don't call it.
6 Q. There's no relation, correct? 6 They only call the big crushing hits that
7 A. He's no relation. 7 result in head contact.
8 Q. And this seems to indicate you did 8 The price they've paid for that is
9 not attend the concussion summit in Rochester, 9 to take a lot of the hitting out. The price
10 Minnesota; is that correct? 10 we've elected to pay is we're going to take
11 A. I did not. 11 out the stuff we don't want. In conjunction
12 Q. Are you aware if anyone from the 12 with the NHLPA, we're going to preserve the
13 NHL did or a -- 13 physical nature of this game.
14 A. I don't know. 14 I don't know if that answers your
15 Q. Okay. Let me just ask you one 15 question or not, but I'm trying to be helpful.
16 more question about the lines -- about the 16 Q. It is. It does. Thank you.
17 line "Injuries will occur." Do you mean all 17 So when you give your speech to
18 injuries, including head injuries? 18 your players and to your coaches at the
19 A. Yes. 19 beginning of the year about how to play the
20 Q. And since -- and don't let me put 20 game, is your view on the physicality and what
21 words in your mouth. But you don't seem to 21 hits are important to the game involved in
22 agree with the OHL and the college rules that 22 that?
23 ban all hits to the head. Is it safe to say 23 A. No. I don't do it anymore. But
24 that you're not in favor of such a rule at the 24 when I did talk to the team, what I would say
25 NHL level? 25 is we -- it would be a series of topics.

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1 One -- the last thing we talk about is how we 1 Q. Did anybody ever tap you on the
2 behave on the ice. It would be like, okay, 2 shoulder and tell you to fight?
3 first treatment of fans, treatment of media, 3 A. No.
4 reporting of injuries. We go through the 4 Q. You say you got in six fights
5 whole laundry list. Travel policies. Off-ice 5 previously, correct?
6 conduct. On-ice contact. We talk about 6 A. (Witness nods.)
7 on-ice conduct is we want to be known as a 7 Q. Or approximately.
8 physical team. We want to stick together. We 8 Did you like it?
9 do not want to be known as a team that crosses 9 A. It was -- the situation called for
10 the line. We do not want to be suspended. We 10 it every time. One time a guy challenged
11 do not want to be known as a dirty or cheap 11 me -- well, a couple times guys challenged me
12 shot team. But we want to be known as a 12 so you have to go. Several times defending a
13 hard-nosed team. 13 teammate. Did I like it? I didn't mind it.
14 Q. What about fighting? Do you tell 14 Q. Okay.
15 them the fighting is expected? 15 A. It wasn't like, Oooh, this is
16 A. No. Fighting is never expected of 16 terrible.
17 any player. I think sticking together means 17 Q. Okay.
18 the guys whose job that is should know when 18 A. Time to dance.
19 it's appropriate to do it but I don't expect 19 Q. Right. Okay.
20 any player to fight. Like, we have guys who 20 So if you've got players on your
21 that's part of their job description, it's 21 team who as part of their job description to
22 what they do. But I think you should be able 22 fight and you expect that -- well, maybe
23 to play in our league and never get in a 23 expect is not the right term, but their job
24 fight. That's why I support the instigator 24 description is to stick up for their teammates
25 penalty. 25 as you put it --
Page 139 Page 141

1 Q. But if nobody fought how would the 1 A. To fight when it's appropriate.
2 keep the game clean as you testified earlier? 2 Q. Fight when it's appropriate. Does
3 A. Well, what I'm saying is that 3 that set an expectation for the whole team
4 there players that it's part of their job 4 that they're supposed to be tough?
5 description. And what we talk about sticking 5 A. No.
6 together would be we would expect players that 6 Q. I'm not saying fight. I'm saying
7 have that role to stick up for their 7 be tough.
8 teammates. 8
9 Q. Okay. Teammates who are smaller, 9
10 for instance. 10
11 A. Teammates who might be big and not 11
12 physical. 12
13 Q. Okay. So there's just some guys 13
14 who that's part of their job description, 14
15 fighting. 15
16 A. Yes. 16
17 Q. Who sets their job description? 17
18 A. It's how they played in junior 18
19 hockey, or college hockey. It's how they play 19
20 in the minors. It's their own job 20
21 description. No one tells players to go 21
22 fight. No one taps you on -- that's how they 22
23 used to do it when I was playing, they tap you 23
24 on the shoulder, basically go out there and do 24
25 something. And they don't do that anymore. 25

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1 1 numbers at the bottom, so I'm wondering if
2 2 this is a draft document. But I certainly saw
3 3 something like this.
4 Q. I think I understand. 4 Q. Okay. I'm going to direct your
5 MR. GOLDFEIN: If it's a trade 5 attention again to page number 41. The
6 secret it reminds me to note that the 6 heading on this says Discussion Points and
7 deposition is designated confidential 7 under that it says Fighting.
8 subject to the court's rules about 8 Do you see that?
9 de-designation. 9 A. Yes.
10 MR. GUDMUNDSON: Yes. That's 10 Q. The first bullet point says:
11 important to note. There are -- there's 11 "Fighting accounts for 8 percent of the
12 a protective order in place here that 12 concussions and 16 percent of the MGL this
13 will allow them -- your counsel to 13 year."
14 designate certain things that either you 14 Did I read this correctly?
15 or they feel are trade secret. 15 A. Yes.
16 Mark that, please. 16 Q. Is MGL man games lost?
17 (Burke Exhibit 6, Concussion in 17 A. Yes.
18 the National Hockey League NHL General 18 Q. Okay. Very simple question. If
19 Managers' Meeting March 2011 bearing 19 there was no fighting, would those concussions
20 production numbers NHL0200272 through 20 and man games lost be eliminated?
21 NHL0200366, marked for identification as 21 A. They'd be reduced, yes. First
22 of this date.) 22 off, I don't think anyone's talking about the
23 23 elimination of fighting. We're talking about
24 BY MR. GUDMUNDSON: 24 the penalization of fighting. Like in all
25 Q. Mr. Burke, the court reporter has 25 sports where fighting is not allowed, there's
Page 143 Page 145

1 handed you what's been marked as Exhibit 6. 1 fighting. So the question wouldn't be can we
2 It's a document that was produced by the NHL 2 eliminate fighting. It's a question of what's
3 in this litigation. And the first page 3 the appropriate penalty for fighting. If we
4 bearing the Bates number NHL0200272 and the 4 upped the penalty, increased the penalty for
5 last page bearing the Bates number NHL0200286. 5 fighting, would this number change? Yes.
6 I am going to direct your attention to page 6 Q. Okay. Are you aware of how many
7 41. And they're numbered at the bottom right 7 fights there are in college fighting every
8 corner. 8 year?
9 A. I'm sorry. Which page? 9 A. Well, I could look it up if you
10 Q. Forty-one. 10 want to take a break.
11 A. The bottom right 41. 11 Q. Is it a very, very small number?
12 Q. Yes, yes. Exactly. 12 A. Yeah.
13 A. Yeah. 13 Q. What about the National Football
14 Q. Ready? 14 League? Are you aware of how many fist fights
15 A. Yeah. 15 go on in that league in a year?
16 Q. First of all, do you recognize 16 A. Well, you'd have to be an idiot to
17 this document? 17 fight in that league but I'm guessing it's a
18 MR. GOLDFEIN: He's asking -- I 18 ver small number. How do you hurt a guy in a
19 don't think he's asking just the page. 19 fight in that league?
20 He's asking about the entirety of the 20 Q. I'm sorry?
21 document. 21 A. How do you win a fight in that
22 A. Yeah. I guess my answer would be 22 league?
23 it says it's a March GM meeting. I think 23 Q. Well, how do you win a fight in
24 typically when we get a Powerpoint 24 any league?
25 presentation I don't know if these little 25 A. Well, a guy with a full face mask

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1 on and a helmet and all pads -- they don't 1 Q. Okay. The second bullet point on
2 have fighting because you can't determine 2 page 41 says: "The number of concussions and
3 anything in a fight. And, yet, they still 3 man games lost due to fighting has increased
4 have fighting. 4 significantly. Man games lost increased from
5 Q. Okay. But in the National Hockey 5 zero to 120 year to year."
6 League they don't have helmets so you can't 6 Did I read that correctly?
7 determine who won? 7 A. Yep.
8 A. No. What I'm saying is how -- if 8 Q. Do you know why that was?
9 you and I are in football gear, what's the 9 A. No. But my guess is if you pull
10 point of a fight? 10 up each of these you'll find this is an
11 Q. Well, they do have rules in the 11 aberration.
12 NHL -- or the National Football League, 12 Q. Okay. Why do you say that?
13 correct, that if you throw a punch you're 13 A. Because my guess is any time you
14 ejected from the game? 14 have that kind of a spike from zero to 120,
15 A. Correct. And they're ejected from 15 the next year will be a number that's closer
16 the game. You're asking me why they don't 16 to one of the two.
17 have a lot of fights in football. And I'm 17 Q. Do you know who put this document
18 saying they still do. And it's really asinine 18 together?
19 in my opinion to get in a fight in a football 19 A. No.
20 game. I don't know how you're going to settle 20 Q. Do you know who is responsible for
21 anything. Baseball you're ejected if you 21 putting together such Powerpoints for
22 fight. They still have fights. Basketball 22 presentation at general managers' meetings?
23 you're ejected if you fight. They still have 23 A. No.
24 fights. 24 Q. Okay.
25 Q. Okay. 25 A. I guess there's multiple people.
Page 147 Page 149

1 A. Rugby, you're ejected if you 1 Q. Okay. At a general managers'
2 fight. They still have fights. 2 meeting is there a agenda and various groups
3 Q. And in the OHL do they have a lot 3 present on various topics?
4 of fights? 4 A. Yes. Sometimes.
5 A. They've put a rule in. They 5 Q. Like different departments within
6 capped the number of fights a player can get 6 the NHL?
7 in. But, yeah, they still have a fair number 7 A. Yes.
8 of fights. I don't know number. 8 Q. And the people from those
9 Q. Okay. In college hockey you say 9 departments might put together a presentation
10 they half some fights. 10 on their own to present as a specific agenda
11 A. Yeah. I got suspended in college 11 item?
12 hockey for fighting. I got one in four years. 12 A. Yes.
13 They're rare. But they still have fights. So 13 Q. The third bullet point here reads:
14 my point is you're not going to eliminate 14 "Concussions reported from fighting are likely
15 fighting in hockey. The question is what's 15 understated."
16 the appropriate penalty. 16 Did I read that correctly?
17 Q. Well, eliminate might mean 17 A. Yes.
18 reducing it from a thousand fights to five or 18 Q. Do you know why that was written
19 six. That would be close to elimination, 19 here?
20 would it not? 20 A. No.
21 A. It could be. And the reason that 21 Well, anecdotally what I would
22 people like me are opposed to the elimination 22 assume back in 2011, I think the players were
23 of fighting is because we think it deters 23 not reporting concussions. Especially because
24 other forms of conduct that are dangerous to 24 they get a chance to go to the penalty box
25 players. 25 after a fight or into the dressing room. So

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1 the doctor -- the trainer doesn't have 1 Q. Okay.
2 immediate contact with them. But -- and that 2 A. There's only one day of the season
3 gave a player time to regroup and say he's 3 you feel a hundred percent and that's the
4 fine, he's fine. So my guess is that's why 4 first day of camp. After that you got some
5 it's understated. I think we're better at it 5 kind of hurt, some kind of pain, some kind of
6 now but -- 6 discomfort every goddamned day.
7 Q. And why wouldn't a player want the 7 (Burke Exhibit 7, Concussion
8 doctor to know that he wasn't feeling well? 8 Report General Managers March 12-13,
9 A. Because that's what players do. 9 2012 bearing production numbers
10 Q. Why do players do that? 10 NHL0035749 through NHL0035788, marked
11 A. Because they want to play. 11 for identification as of this date.)
12 Q. Okay. 12 BY MR. GUDMUNDSON:
13 A. Against our wishes. We don't want 13 Q. Mr. Burke, the court reporter has
14 this. We tell a player tell us if you're not 14 handed you what's been marked as Exhibit 7.
15 feeling well. 15 It's a document produced by the NHL on this
16 Q. Okay. 16 case. The first page bears the Bates numbers
17 A. But players want to play. 17 NHL00350749. And the last bears the Bates
18 Q. Okay. Even when they're hurt? 18 number NHL0035788.
19 A. Yes. We tell our physician you 19 I'm going to direct your attention
20 gotta see through that. You gotta -- don't 20 to page 2 -- actually, you know what? This
21 listen to the player. You gotta see through 21 doesn't have page numbers. So to the end of
22 that when he says he's okay and he's not. You 22 Bates number 751 --
23 can't just take his word for it. Look in his 23 A. Yeah.
24 eyes. Ask him questions. See through it. 24 Q. -- through 755 -- I'm sorry --
25 But the fighting one is 25 756.
Page 151 Page 153

1 problematic because the guy goes to the 1 MR. GOLDFEIN: But you may want to
2 penalty box for five minutes. Fighting is 2 take a look at the whole document before
3 penalized. He goes to the box. He gets to 3 you --
4 stay away from the trainer for five minutes. 4 MR. GUDMUNDSON: Yeah. Of course.
5 Unless he's showing visible signs, then they 5 Q. Feel free to look at whatever you
6 take him out. Or he goes in the dressing 6 choose.
7 room. Say he gets in a fight at the 7 (Document review.)
8 two-minute mark of the period. He's got 18 8 Q. I'm going to direct your attention
9 minutes of playing time, probably 30 minutes 9 to the page ending Bates numbers 751. Do you
10 of real-time, to recover. If he's not 10 see that?
11 complaining the doctor doesn't come down. 11 A. Yes.
12 Q. Okay. 12 Q. That's a slide that says Chronic
13 A. So this is not what we want. This 13 Traumatic Encephalopathy, CTE. Have I read
14 is what they said. We think we're better at 14 that correctly?
15 this now. 15 A. Correct.
16 Q. And this is the same way you 16 Q. Do you know what CTE is?
17 played when you played, correct? You didn't 17 A. Yes.
18 want somebody to know you were hurt? 18 Q. What is it?
19 A. Correct. 19 A. It's chronic traumatic
20 Q. Okay. Were those the expectations 20 encephalopathy. I mean, it's a brain disease.
21 you had for your teammates, that they would 21 Like, I know it's been identified in some
22 play when they were hurt? 22 former players.
23 A. Back in the day? 23 Q. Former players like Steve
24 Q. Yeah. 24 Montador?
25 A. Yeah. 25 A. I don't know if it was Steve

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1 Montador or not. 1 question? Just reading documents into
2 Q. Okay. Draw your attention to the 2 the record and asking whether you've
3 page ending Bates numbers 752 -- and just to 3 read something correctly is not an
4 take a step back. When you say it was 4 appropriate deposition question. So
5 diagnosed in some former players, you mean 5 I'll object and move to strike the prior
6 some former NHL hockey players? 6 line of questioning.
7 A. Yeah. From this presentation -- 7 BY MR. GUDMUNDSON:
8 we received the presentation on it and they 8 Q. Do you know why the CTE
9 found the existence of this in a couple former 9 information was presented to you?
10 players if I'm not mistaken. 10 A. I assume it was because of the
11 Q. Okay. The page ending Bates 11 media attention about it.
12 number 752, I'm going to read that. At the 12 Q. Do you know if repeated hits to
13 top is the title -- it says CTE Defined. 13 the head cause CTE?
14 Below that it says the first bullet point says 14 MR. GOLDFEIN: Object to the form
15 "Neurodegenerative Disease." 15 of the question.
16 The second bullet point reads: 16 A. What was presented to us -- I'm
17 "First identified in 1928 among boxers." 17 not a doctor. I'm not a scientist. Despite
18 Third bullet point reads: 18 my extensive pre-med background. What was
19 "Dementia pugilistica." 19 presented to us was there's a lot of publicity
20 Fourth bullet point reads: 20 about these post-playing issues. Let's
21 "Identified through post-mortem studies." 21 explain what CTE is. And let's see if there's
22 Fifth bullet point reads: 22 a link. And what was presented to us -- and
23 "Neurofibrillary tangles consistent of Tau 23 significant questioning by the GMs of the
24 proteins distinct from Alzheimer's disease." 24 doctors saying how does this work. And they
25 Did I read that correctly? 25 said at this point -- and I'm not reading
Page 155 Page 157

1 A. Correct. 1 this. What we were told was that four hockey
2 Q. If you look at the next page 2 players' brains, I might be wrong, four at
3 there's some kind of picture but we can't make 3 that point football players' brains, the brain
4 it out. So we'll move to page -- or at least 4 of a circus clown who had been fired
5 I can't make it out I should say. 5 repeatedly out of a cannon, and some boxers.
6 If you look at the page ending 6 And they said based on the evidence they had,
7 Bates number 755, please. 7 the medical evidence they had available, in
8 A. Yeah. 8 the medical community, not to our doctors,
9 Q. The top of that says Signs and 9 that they could not conclusively say there was
10 Symptoms. The first bullet point says: 10 a link. And they needed way more research and
11 "Typically middle to later life." 11 way more sample size. And that this totally
12 The second bullet point reads: 12 disregarded any other factors, hereditary
13 "Irritability, anger, impulsive, short fuse, 13 factors, obesity, alcohol abuse, drug abuse,
14 apathetic, depressed, suicidal." 14 that possibly produce the same effect on the
15 Did I read that correctly? 15 brain.
16 A. Yes. 16 Q. And that's what you were told.
17 Q. Third point reads: "Decreased 17 A. Yes.
18 cognitive functioning - memory, attention 18 Q. Is there a difference in your mind
19 concentration, planning, problem solving." 19 between what boxers do and what fighters do in
20 Fourth bullet point reads: 20 hockey?
21 "Parkinsonism (motor dysfunction) speech 21 A. I'm not being a smart ass. Are
22 disturbances, ocular problems." 22 you serious?
23 Did I read that correctly? 23 Q. Yeah. I am serious.
24 A. Yes. 24 A. It's not even close. I mean,
25 MR. GOLDFEIN: Is there a 25 you're talking about a boxer, daily training

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1 he's taking sustained blows to the head. In a 1 Q. Okay. And I didn't see any slides
2 fight it's in the hundreds, probably over a 2 in here that discussed that there's not enough
3 thousand in some 15 round fights where they 3 scientific basis to make any connection.
4 get punched in the head. I don't know. That 4 There's some questions about what the cause
5 seems high I guess. I don't think there's any 5 is. But was there some specific discussion
6 comparison about the number or quality or 6 about the doctors telling you that more
7 quantity of blows that a player sustains. 7 research was needed?
8 Q. And that's just your opinion 8 A. Yes. My recollection is yes.
9 though. 9 MR. GOLDFEIN: There's a slide on
10 A. That's all I can give you is my 10 it --
11 opinion. I never boxed. 11 MR. GUDMUNDSON: Which one?
12 Q. Okay. 12 MR. GOLDFEIN: -- counsel.
13 A. I never studied the sport. I've 13 A. Well, we don't know.
14 watched enough of it to know that part of the 14 MR. GUDMUNDSON: Which one?
15 routine is getting hit in the head repeatedly 15 MR. GOLDFEIN: On page --
16 in a short period of time for 15 rounds or 12 16 THE WITNESS: 757.
17 rounds or whatever the fight is. I've been to 17 MR. GOLDFEIN: 757 and 758. "What
18 a couple UFC title fights. But, no, it's my 18 we don't know." And then "What's
19 opinion. It's not -- there's no expertise 19 Needed."
20 behind it other than watching. 20 MR. GUDMUNDSON: I can read it.
21 Q. Okay. And so you think that 21 MR. GOLDFEIN: "Randomized study
22 hockey fighting is not as severe as boxing. 22 in deceased athletes." "Prospective
23 A. It's -- in terms of the number and 23 documented evidence" --
24 quality of blows to the head over a certain 24 "Post-mortems in non-athlete" --
25 period of time not even close. 25 MR. GUDMUNDSON: Counsel, I can
Page 159 Page 161

1 Q. Not even close. In what way? 1 read it, okay?
2 A. The number of blows a boxer 2 MR. GOLDFEIN: Well, you're
3 sustains on a daily basis as part of his fight 3 reading documents into the record. Why
4 routine and as part of his training is not 4 don't you read all the document in the
5 even close to what our players do. 5 record?
6 Q. Do you know how boxers are 6 BY MR. GUDMUNDSON:
7 trained? 7 Q. Well, does this page, 757, say
8 A. Yeah, a little bit. 8 anything about further testing needed? And
9 Q. How? 9 about how there is no connection or --
10 A. They spar. They do body work. I 10 MR. GOLDFEIN: I was reading 758.
11 mean, I've watched fighters leading up to 11 A. What the doctors told us was the
12 title fights. 12 science that they had available to them today,
13 Q. Does it involve full-on blows to 13 there was no link. And that over time they'd
14 the head? Punches to the head? 14 likely be able to establish whether there was
15 A. No. Most sparring there's a 15 or wasn't.
16 helmet on. But they still get hit pretty 16 Q. Okay. I'm just wondering if -- I
17 hard. 17 couldn't find those specific references in the
18 Q. Okay. Were you familiar with CTE 18 presentation.
19 prior to this meeting? 19 MR. GOLDFEIN: Well, the documents
20 First of all, you attended this 20 speaks for themselves, Counsel.
21 meeting, correct? As general manager of the 21 MR. GUDMUNDSON: Is this the
22 Maple Leafs. 22 way -- this is my first deposition in
23 A. You know, there's no agenda. I'm 23 this case, but I wasn't there was
24 sure I did. I remember the doctors talking 24 speaking objections the entire time. Is
25 about this, so, yeah. 25 this the way it's gone the entire time?

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1 MR. GOLDFEIN: The way -- I am in 1 Q. What did this relate to?
2 compliance with the judge's orders on 2 A. I got a letter or my EA got a
3 objections. You are not -- there are 3 letter. Empire Club was having a panel on --
4 rules of taking depositions. And among 4 with Dr. Tator. And he's with Think First.
5 those rules are that reading documents 5 And they were inviting the Governor General of
6 into the record without asking questions 6 Canada, Dave Johnston, played college hockey
7 is inappropriate. There are rules of 7 at Harvard, by the way, and Brendan Shanahan
8 depositions which suggest reading 8 to this luncheon discussion hosted by James
9 hearsay into the record is 9 Cybulski who's a well-known television and
10 inappropriate -- 10 radio personality in Canada.
11 MR. GUDMUNDSON: You're done. 11 Q. Okay. In response to this
12 You're done. You're not going to be on 12 invitation at the very top you wrote to
13 the record anymore. Is that understood? 13 Brendan Shanahan; is that correct?
14 MR. GOLDFEIN: You're not telling 14 A. Yeah.
15 me how to defend the deposition. Okay? 15 Q. And you wrote: "This is a trap.
16 MR. GUDMUNDSON: Well, at the 16 Tator hates us."
17 break we're going to have to get the 17 Did I read that correctly?
18 judge on the phone and we're going to 18 A. Yes.
19 have to read it into the record. 19 Q. What did you mean by that?
20 MR. GOLDFEIN: That's fine. 20 A. Just what I said. Tator hates us.
21 MR. GUDMUNDSON: I read the CTE 21 Q. Well, why did you say Tator hates
22 evidence that was in -- 22 you?
23 MR. GOLDFEIN: You didn't ask a 23 A. Dr. Tator is a guy, in my view,
24 question. 24 I've met hit personally. I think it's a good
25 MR. GUDMUNDSON: And I followed it 25 person. I'm sure he's a good doctor. But I
Page 163 Page 165

1 with a series of questions. 1 think Charlie -- or what's his first name? Is
2 MR. GOLDFEIN: You did not ask a 2 it Charlie? Charlie Tator. Dr. Tator really
3 question. 3 thinks our game should be played as women's
4 MR. GUDMUNDSON: Well, the judge 4 hockey.
5 will read the record and she will 5 Q. What do you mean by that?
6 understand what's what. 6 A. Well, women's hockey is terrific
7 Would you mark that, please. 7 but there's no hitting. There's no fighting.
8 (Burke Exhibit 8, e-mail dated 8 There's incidental body contact a lot. It's a
9 3/13/2010 bearing production numbers 9 fabulous product. I love women's hockey.
10 NHL2340979 through NHL2340980, marked 10 It's not a term of denigration. But there's
11 for identification as of this date.) 11 no hitting. I think Dr. Tator would like to
12 BY MR. GUDMUNDSON: 12 turn the game into a no hitting game. And I
13 Q. Mr. Burke, the court reporter has 13 think Dr. Tator -- what I resent most about
14 handed you what's been marked as Exhibit 8. 14 Dr. Tator is that he's one of those guys that
15 Could you give that a read and let me know 15 doesn't say anything when things are going
16 when you're ready. For the record, this is a 16 well, and then when there's an incident, can't
17 document that was produced by the NHL. The 17 resist the urge to see his name in print. So
18 first page bearing the Bates number NHL2340979 18 I don't take him seriously.
19 and the last page bearing the number 19 Q. Why does Dr. Tator want to change
20 NHL2340980. 20 the game in your view?
21 (Document review.) 21 A. Because I think Dr. Tator wants to
22 A. Yeah. 22 watch women's hockey.
23 Q. Do you recall this e-mail 23 Q. I'm not following. Because he
24 exchange? 24 wants -- he wants there to be less injuries?
25 A. Yep. 25 A. He wants no-hitting hockey. He

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1 wants no-injury hockey. Ironically, they have 1 but not on this occasion.
2 the lots of concussions in women's hockey. I 2 Q. What is the Empire Club?
3 think Dr. Tator would like to watch 3 A. It's -- I couldn't tell you. It's
4 non-contact hockey. 4 a club in Toronto. It's a Canadian --
5 Q. What's your basis for saying 5 Toronto-based organization that I assumes
6 there's a lot of concussions in women's 6 glorifies the Empire. I don't know. I have
7 hockey? 7 spoken at it. I don't know what it is.
8 A. Actually, I like women's hockey 8 Q. Okay. Well, if you look three
9 and follow them a little bit, and there are 9 paragraphs down in the e-mail below on page 1
10 lots of concussions in women's hockey. 10 here it reads: "This organization is
11 Q. Okay. 11 dedicated to improving player safety in all
12 A. There's players that miss lots of 12 levels of hockey with a special emphasis
13 games because of concussions. From incidental 13 in" -- I'm sorry. Let's take a step back.
14 contact and the contact that is permitted. 14 That's talking about Think First.
15 Q. And what -- so how do you know how 15 The paragraph above that reads:
16 many concussions there are? Have you looked 16 "We would be delighted to have Mr. Burke share
17 at the numbers? 17 his views along with Dr. Tator, Canada's own
18 A. I haven't this year but I have in 18 and world renowned neurosurgeon and founder of
19 the past, yeah. 19 Think First. This organization is dedicated
20 Q. Why? 20 to improving player safety in all levels of
21 A. Because I'm on the board of the 21 hockey with a special emphasis on the early
22 Canadian Women's Hockey League. 22 years. Mr. Burke we are certain is keenly
23 Q. Okay. 23 aware of the good work they do to promote safe
24 A. Women's hockey is a passion of 24 hockey."
25 mine. I think Dr. Tator would like us to play 25 Did I read that correctly?
Page 167 Page 169

1 women's hockey. Which is wonderful hockey. 1 A. Yes.
2 But it has no contact. 2 Q. Is that your understanding of this
3 Q. Now, you say you think Dr. Tator 3 organization, Think First?
4 wants you to play women's hockey as you put 4 A. Yes. They're wonderful for minor
5 it. Has he ever said that? Has he ever said 5 hockey. Their programs are excellent. What
6 take hitting out of game completely? 6 they preach for young players playing, we
7 A. Has he said that directly, no. 7 support.
8 That's my sense from -- I actually met him. I 8 Q. Okay. Do you believe that the way
9 did a couple of things -- when I worked at the 9 the game is played at the NHL has an influence
10 League I think I spoke at a couple panels with 10 on the way it's played at lower levels
11 him. That's my sense. 11 including kids?
12 Q. Okay. 12 A. It shouldn't if the coaches coach
13 A. He might defend that vigorously. 13 properly and the referees officiate properly.
14 That's my sense. 14 But I'm sure there's some influence, yes.
15 So what I said to Brendan is 15 Q. Do you communicate with former NHL
16 before I agree to go to this are you going, 16 players on a regular basis?
17 because if the League were being represented 17 A. Some.
18 and wanted me to go I would go. And if the 18 Q. Some. Has anybody ever told you
19 League wasn't going to go then I wasn't going 19 that they were suffering through some of the
20 to go. 20 symptoms of CTE that were outlined in the
21 Q. Did you go? 21 document we read a little earlier?
22 A. I don't think so. I'm pretty sure 22 A. No.
23 I'd remember. I'm pretty sure I didn't do it. 23 Q. For example, having somebody
24 Q. All right. 24 saying they might have trouble concentrating
25 A. I have spoken at the Empire Club, 25 or they might have trouble with their impulse

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1 control? 1 MR. GOLDFEIN: All right. So I'm
2 A. No. 2 going to object and move to strike the
3 Q. Nobody's ever said that? 3 testimony. You didn't -- as lacking
4 A. No. 4 foundation as to both the document and
5 Q. And I think you testified earlier 5 the testimony. And the question.
6 that you have never had any symptoms. 6 Q. Okay. The first page of this
7 A. Correct. 7 document -- I mean, that's part -- most of the
8 Q. Is that correct? Okay. 8 objection is absurd, but to the extent that I
9 MR. GUDMUNDSON: Would you mark 9 didn't make a foundation about this, the very
10 that, please. 10 first page of this document at the top says
11 (Burke Exhibit 9, General Notes 11 General Notes From General Managers Meeting,
12 from General Managers Meeting - June 4, 12 June 4, 2007, correct?
13 2007 bearing production numbers 13 A. Yes.
14 NHL0232747 through NHL0232761, marked 14 Q. Were you a general manager at that
15 for identification as of this date.) 15 time?
16 BY MR. GUDMUNDSON: 16 A. Yep.
17 Q. Mr. Burke, the court reporter has 17 Q. With Vancouver, right?
18 handed to you what's been marked as Exhibit 9. 18 No, Ducks. Because you won the
19 It's a document produced in this litigation by 19 Stanley Cup with the Ducks.
20 the NHL. The first page bears the Bates 20 A. Yep. This is right before we won
21 number NHL0232747 and the last page bears the 21 the Cup.
22 Bates number NHL0232761. Take minute to look 22 Q. Did you attend this meeting?
23 at that. I'm going to ask you only about 23 A. Yes.
24 pages -- 24 Q. Here on page ending Bates number
25 A. Whose notes are these? 25 755 --
Page 171 Page 173

1 Q. -- the pages ending Bates 1 A. But I don't know whose document
2 number -- well, the section starting on page 2 this is or whose notes these are. I will tell
3 ending Bates number 753 where it says Blows to 3 you I have never made that statement.
4 the Head and then the next two pages following 4 Q. Okay.
5 that. 5 A. I'll be he happy to tell you what
6 A. Okay. 6 I said.
7 (Document review.) 7 Q. Yeah. Tell me what you said. I
8 Q. I'm actually just going to direct 8 want to know.
9 your attention to the page ending Bates number 9 A. Okay.
10 755, please. The very top bullet point there, 10 THE WITNESS: Is that --
11 where it says "Brian Burke is very..." 11 MR. GOLDFEIN: Go ahead.
12 Do you see that? 12 A. I said I was concerned about
13 A. Yes. 13 killing hitting. I said in my experience
14 Q. Okay. It reads: "Brian Burke is 14 doling out supplementary discipline is that
15 very concerned about killing hitting. He 15 most of the incidents I had to deal with
16 states that it has never been his opinion that 16 weren't head hunting. It wasn't where I said
17 head hunting or 'illegal' reaction plays (e.g. 17 I'm going to get you. I'm not sitting on the
18 Pronger's elbow on McAmmond) are intentional 18 bench saying next time I'm on the ice I'm
19 attempts to injure. Feels they are hockey 19 going to get somebody. Most of them are
20 plays." 20 hockey plays gone awry. They should still be
21 Did I read that correctly? 21 penalized Pronger's elbow on McAmmond was the
22 A. You read that correctly but that's 22 vicious elbow. He got suspended in the finals
23 certainly not my recollection of what I said. 23 for it. And we supported that. Anaheim
24 Q. Okay. Why don't you tell me what 24 supported that. I stood beside him on the
25 it is you said. 25 podium and said we got to take our medicine on

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1 this one. This was a cheap shot. But if you 1 trying -- you just beat me at the last minute
2 watch the play, he's sliding over, he's trying 2 and I'm trying to get you, it's a hockey play
3 to stop him, and it just -- he still got him. 3 gone awry. I still sit but it might be two
4 Still gotta go. Still has to sit. But I said 4 games. If I just come into you and get you in
5 the vast majority of the disciplinary stuff 5 the head I don't -- give the guy ten games.
6 that I did were hockey plays gone awry. They 6 Q. Okay. I think I understand but I
7 still gotta go. I said head hunting has to 7 have to you this question. What is fighting
8 be -- I'm consistent in all of these meetings. 8 then? Isn't it an intentional attempt to
9 Rule 48. I was one of the guys who pushed 9 injure somebody with a blow to the head?
10 hardest for it. Guys that go after the head 10 MR. GOLDFEIN: Objection to the
11 have to be punished. 11 form of the question.
12 So I don't know what -- who's 12 A. Fighting he is, generally
13 notes these are. I don't know if they were 13 speaking, 99 times out of a hundred, two
14 out late the night before, but this -- I have 14 players to an illegal form of settling a
15 never said this. What I have said is the 15 score.
16 average play that we suspend a player for is a 16 Q. Okay. But I believe you testified
17 hockey play gone awry. Rather than someone 17 that there were certain players on your teams
18 premeditating on the bench, goddamn it, next 18 and on NHL teams that it's part of their job
19 time I get out there I'm going to injure 19 description to do the fighting; isn't that
20 somebody. Still gotta go. 20 correct?
21 Q. And that's fair. That's why I 21 A. Correct.
22 asked the question. That's why I gave you the 22 Q. Okay.
23 document to you. And you've made a 23 A. Difference here is I'm coming into
24 correction. 24 you maybe at full speed and throwing an elbow.
25 MR. GOLDFEIN: The record will 25 I could break your neck with that hit. Okay?
Page 175 Page 177

1 speak for itself. 1 What I'm saying the fighting is
2 Q. But let me -- 2 generally two willing combatants who will be
3 MR. GUDMUNDSON: Well, the 3 penalized heavily who are trying to settle
4 document will speak for itself, won't 4 something. It's very different.
5 it, Mr. Goldfein? 5 Q. When you say penalized heavily,
6 MR. GOLDFEIN: It won't be 6 what is the penalty for fighting in the NHL
7 admissible. 7 today?
8 MR. GUDMUNDSON: But -- well, 8 A. One-twelfth of the game. Five
9 that's not for you to decide, though, is 9 minutes.
10 it? 10 Q. Five minute major?
11 MR. GOLDFEIN: That's correct. It 11 A. Yeah.
12 isn't. 12 Q. No suspension though, automatic,
13 BY MR GUDMUNDSON: 13 correct?
14 Q. So you were opposed to intentional 14 A. No automatic suspension.
15 attempts to injure and illegal reaction plays; 15 Q. Okay. And I'm not trying to put
16 is that what you're saying? 16 you on the spot. I'm just clarifying what the
17 A. Yes. But the fact that it's a 17 rules are.
18 relation play doesn't save you as a player in 18 A. Yeah.
19 my mind. So when I was doing discipline. A 19 Q. But what if two players wanted to
20 guy comes in, he's coming in legal, he's going 20 be consent to decking each other illegally
21 to do it right. At the last minute the guy 21 with body checks all game long? Couldn't they
22 zigs so he zags and throws out an elbow. It's 22 do that as well, including in the head
23 clearly a reaction play. He's still got to 23 deliberately?
24 sit. He still threw an elbow. But to me 24 A. Could two players -- how would
25 there's a real difference that -- where I'm 25 that work? Pardon me?

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1 Q. Well, you said that if the 1 the elimination of some of the fights that
2 distinction you're making between intentional 2 we're trying to eliminate. The staged fights.
3 attempts to injure in the body checking 3 Q. Okay. So maybe I'll ask you this
4 context -- 4 question a little different. Do you know how
5 A. Well, actually you're trying to 5 the rank-and-file current NHL hockey player
6 make that distinction. But let me make it for 6 feels about fighting?
7 you again -- 7 MR. GOLDFEIN: Objection to the
8 Q. Sure. 8 form of the question.
9 A. -- the best I can. 9 A. I don't.
10 I can throw a body check on you 10 Q. Okay.
11 that you're not aware of or ready for or 11 (Burke Exhibit 10, e-mail dated
12 completely defenseless to absorb. That's a 12 10/24/2007 bearing production numbers
13 real dangerous play. In a fight -- I might 13 NHL0029952 through NHL0029957, marked
14 beat you in a fight, but you consented to the 14 for identification as of this date.)
15 fight in 99 cases out of a hundred. 15 BY MR. GUDMUNDSON:
16 Again, and I don't want to sound 16 Q. Mr. Burke, the court reporter has
17 like a broken record, this is what we have 17 handed you what's been marked as Exhibit 10.
18 agreed as a group with the union is the mode 18 It's a document produced by the NHL in this
19 we want to keep the temperature down on the 19 litigation bearing the Bates number NHL0029952
20 ice surface. We want the amount of fighting 20 and the last page bears the Bates number
21 we have. The players want the amount of 21 NHL029957. Please take a minute to look at
22 fighting we have. This is how we can settle 22 that. I'm only going to ask you about the
23 things and keep the temperature down on the 23 first page and the very -- that line at the
24 ice. It's not Brian Burke's view on fighting. 24 very top of the second page.
25 It's the NHLPA's view on fighting as well. 25 (Document review.)
Page 179 Page 181

1 Q. But you've certainly taken the 1 Q. Ready?
2 position against the elimination of fighting 2 A. Yep.
3 in the game, correct? 3 Q. Page 1, this is an e-mail from you
4 A. Well, again, I think talking about 4 to Colin Campbell, October 24, 2007, correct?
5 eliminating fighting is silly. But the 5 A. Yes.
6 penalties, more severe penalties, yes, I have. 6 Q. Okay. The first line you write:
7 And I've been a vocal person on it. The last 7 "Those four are jerks for killing the proposed
8 time the GM's voted on this, the vote was 29 8 change regarding instigators without even
9 to 1, which means that the other 29 agree with 9 taking it to the Competition Committee."
10 me. But they'd like to stay out of the 10 Did I read that correctly?
11 limelight. They'd like to avoid depositions. 11 A. Yes.
12 They'd like avoid reporters calling them 12 Q. What are you talking about there?
13 names. But they still vote the same way I do. 13 A. I don't know.
14 Maybe I'm either dumber or braver than they 14 Q. Okay.
15 are because I'm the one who'll talk about it. 15 A. I assume I had proposed a rule
16 Q. Okay. Do you know how the players 16 change to keep the instigator penalty in but
17 feel about fighting? 17 to raise the number of instigator penalties a
18 A. Players' Association has 18 player could be assessed before he was
19 consistently opposed the elimination of 19 suspended. But it got to -- I think it got to
20 fighting in the National Hockey League. 20 the Competition Committee. I don't know what
21 Q. Through the voted-in 21 that -- I don't know who the four jerks are.
22 representatives for each team? 22 Q. Okay. This doesn't square with
23 A. Through their executive. I'm not 23 your recollection then? Did you go to the
24 sure how their internal workings are. They 24 Competition Committee?
25 have player reps. But they've even opposed 25 A. Well, it might not have at that

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1 point in time. This is in October. But I 1 Shanahan, is what's the right level, how do we
2 think it did go to the competition committee 2 take the circus shit out but keep hitting in
3 ultimately. 3 our game. It's about the level. What's
4 Q. Okay. If you go down about midway 4 appropriate.
5 through the page there's a paragraph that 5 And I thought to go -- if you were
6 starts "I do not believe..." 6 to give ten a year ago to go to 20 isn't fair
7 A. Yeah. 7 to the players. They say, Okay, we're going
8 Q. It says: "I do not believe the 8 to raise the bar. Then in my mind you say,
9 NHL head office properly respects the managers 9 Okay, maybe it's going to go up by 50 percent
10 despite your protests. The role of the 10 to 15. But doubling it, you'll see it's a
11 manager has diminished steadily on your watch. 11 common theme in my exchanges with Colie.
12 This is beyond dispute for me." 12 Q. What makes a quality hockey person
13 Did I read that correctly? 13 in your mind? You said that Commissioner
14 A. Yes. 14 Bettman was surrounding himself with quality
15 Q. And what did you mean by that? 15 hockey people.
16 A. I believe that -- and still 16 A. These guys played the game.
17 believe -- and I think part of it is a good 17 They're hard hockey guys. In other words,
18 thing -- that the League office -- the hockey 18 they respect physical hockey. Kris King
19 staff has gotten bigger, the Hockey 19 played in the NHL. Honest player, hard
20 Operations, Player Safety and they often 20 player. Mike Murphy played in the NHL.
21 substitute their own standard now for what the 21 Honest player, hard player.
22 general managers historically would have 22 Q. So these are players that in your
23 imposed. 23 mind embrace the more physical aspect of the
24 This whole thing is whining about 24 game?
25 two suspensions that weren't to my players if 25 A. No. Mike Murphy was a skill
Page 183 Page 185

1 I recall this correctly. Again, this is eight 1 player, not a hard player. But he's a hard
2 years. I think he gave Steve Downie 20 for an 2 hockey guy. In other words, you don't have to
3 incident and he must have given Jesse -- yeah, 3 hire -- like Pat LaFontaine does work for the
4 Downie and Boulerice. Jesse Boulerice. Must 4 League now. Hes a hard hockey guy. He was a
5 have got 20. I'll he happy to Google it on a 5 pure skill player but he respects the physical
6 break if you want. 6 element of the game. He understands the need
7 Q. Oh, that's fine. 7 to keep it hard hockey.
8 A. And my objection was -- it's much 8 So that's -- when I say good
9 like the exchange I had with Brendan Shanahan 9 hockey people, hard hockey people, they don't
10 is we want to keep raising the bar on 10 need to have played that I way. They need to
11 supplementary discipline, but is it fair to 11 respect that role.
12 players to go from ten games to 20? Is it 12 Q. Understood. So hard hockey is a
13 fair for players to go from eight games to 16 13 term of art for you?
14 games? And so I said as far as triple and 14 A. Yes.
15 quadruple sentencing, that's bullshit. We 15 Q. What does it mean?
16 never wanted that. I said the role of the 16 A. It means guys who respect the
17 manager, where we said this is the standard we 17 physical side of the game and the importance
18 want is diminished steadily, because Gary has 18 of keeping it.
19 surrounded himself now with hockey people. 19 Q. Okay.
20 Staffs are bigger. So Mike Murphy is there. 20 A. Even if they never played that
21 Kris King. They're quality hockey people. So 21 way. Even if they were pure skill guys who
22 I think the role of the managers on this issue 22 are soft as a baby's butt, they can still be
23 has been diminished. 23 hard hockey guys.
24 But this is similar to other 24 Q. Okay. And so the role of the
25 exchanges I've had with Colie and with Brendan 25 general manager in your -- at least according

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1 to you in this e-mail, has diminished over the 1 Q. Okay.
2 years but -- 2 A. One of them is physical hockey.
3 A. In this area, yeah. In this area. 3 Hard checking hockey. We think the flow of
4 Q. In this area. 4 game is the most -- you know, goals, goals
5 But does that have a negative 5 scoring chances, the flow of the game is most
6 impact on the League today? 6 important. We think body checking is a very
7 A. What you're seeing from me -- no, 7 important part of that.
8 I don't think it has. I think our League's in 8 And if you penalize the guys who
9 great shape. The common theme in these 9 play on the line and then cross the line,
10 e-mails for you should be that I have strong 10 okay, we're going to penalize them. You cross
11 opinions and because I worked at the League, 11 the line, you do something that's worthy of
12 the average GM might think that he's not going 12 supplementary discipline, we're going to whack
13 to send this e-mail. And you'll see Colie and 13 you. The question is how much. How many
14 I telling each other to fuck off, calling each 14 games. What's a fair penalty to keep hitting
15 other names. I respect Colin Campbell. 15 in the game. What's the balance. It's all
16 Q. Um-hum. 16 about a balance.
17 A. So forget the language, forget the 17 And I felt with these two guys,
18 hyperbole. This is an issue saying how do we 18 because they were stiffs, he got two players
19 change the system. How did we change the 19 who were unnamed players, and it's like -- I
20 system overnight. Who told you to do this. 20 think it's really easy for the judge to throw
21 We don't want it to go double. We want the 21 a real harsh sentence to the guy that no one
22 bar up, but not double. I don't think it's 22 cares about. No one's going to complain about
23 fair to the players. To say to Steve Downie, 23 these two guys getting it, but what if the
24 Yeah, I knew you thought that might be worth 24 next hit like that is a star player. And now
25 15 but I'm giving you 20. It's a new sheriff 25 you're stuck, you got to give him 20. Well, I
Page 187 Page 189

1 or a new day. I don't think it's fair to the 1 didn't feel the managers had gone to 20. I
2 fair. 2 felt the buildings being half full is a big
3 Q. If you go down that page there's a 3 part of our business. What we sell is
4 paragraph that starts: "The media have goaded 4 physical hockey.
5 the NHL into this." 5 Q. Does that include fighting?
6 Do you see that? 6 A. It includes fighting, but that's
7 A. Yeah. 7 way down the list.
8 Q. That reads: "The media have 8 Q. The very bottom paragraph in this
9 goaded the NHL into this. They will continue 9 e-mail you write: "I know you understand
10 to goad you to raise the bar again. Then they 10 this. Does everybody? This is a game of
11 will fucking kill us when we have totally 11 violent contact. It cannot ever be made
12 removed hitting from the game and our 12 completely safe, nor should it be. And we
13 buildings are half full and our ratings are 13 cannot sell a no-hit game. The media who
14 even worse than they are now, if that's even 14 attack us for injuries don't understand this.
15 possible." 15 I can go the Sweden to watch that."
16 Did I read the correctly? 16 Did I read the correctly?
17 A. Yes. 17 A. Yes.
18 Q. What did you mean by "our 18 Q. What did you mean it cannot ever
19 buildings are half full and our ratings are 19 be made completely safe, nor should it be?
20 worse than they are now"? 20 A. Seriously? You want me to answer
21 A. We believe as a group, right or 21 that question? Let me ask you a question.
22 wrong, and I'm certainly not alone in this, we 22 How do you make a full contact sport
23 believe, the NHL, that there's a series of 23 completely safe?
24 elements that we sell to our game that get 24 Q. Okay. So I believe you've
25 people to watch. 25 testified to this a couple of times about your

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1 view of the way hockey should be played. But 1 this e-mail where you're talking about
2 here you seem to be saying that you have an 2 penalizing people who have administered direct
3 expectation that it will not be safe. 3 blows to people's heads, correctly?
4 A. It can't be safe. I'm saying by 4 A. I don't remember the suspensions.
5 definition it can't be. When people 5 Q. Okay. Boulerice and Downie, you
6 formulated how this game was played and they 6 were upset that they were getting to lengthy
7 said we're going to allow checking, there's no 7 of suspension; is that right?
8 out of bounds in a hockey rink. Do you know 8 A. Yes.
9 that? There's only two sports where there's 9 Q. In other leagues, the OHL -- or
10 not a place where you can stand and say I'm 10 let's stick in college hockey, the Olympics
11 safe here. If you're on the ice surface and 11 for that matter, they've implemented rules and
12 you've got the puck you can get hit. There's 12 they've implemented discipline and things that
13 no area. 13 have made the game safer to try to take some
14 Q. What are those two other sports? 14 of the stuff out of the game. You've
15 A. Ring sports. Boxing -- 15 testified that you don't believe in some of
16 Q. Boxing. 16 those rules; is that correct?
17 A. Hockey. And ring sports. Boxing. 17 A. I don't. That's right.
18 UFC. Anything in a ring. There's no out of 18 Q. Okay. And, again, there is no
19 bounds. 19 notion here that you should be ashamed of any
20 Q. Okay. 20 of this. I'm just --
21 A. This is a full contact sport. It 21 MR. GOLDFEIN: Object to the form.
22 was designed to be a full contact sport. Any 22 We don't need those speeches. Ask your
23 time you have the puck or just released the 23 questions.
24 puck you can get hit. I'm not asking you a 24 MR. GUDMUNDSON: I'm just telling
25 rhetorical question back but I think it's 25 you -- I am going to make my record, Mr.
Page 191 Page 193

1 obvious. How do you make that game completely 1 Goldfein.
2 safe? The answer is you can't. It's as silly 2 MR. GOLDFEIN: But speechifying is
3 to me as saying let's make -- you know what? 3 not part of the record. You're here to
4 We're going to change the NFL. We're going to 4 ask questions. You don't need to pass
5 make it completely safe. Really? You think 5 moral judgment and tell him he doesn't
6 anyone's going to watch. I can watch flag 6 need to -- he doesn't feel ashamed. He
7 football in my neighborhood any day I want. 7 doesn't feel ashamed.
8 So that's what I'm saying, is we 8 BY MR. GUDMUNDSON:
9 can't make it safe. The players don't want it 9 Q. Well, I'm addressing what you
10 safe. They want hitting. And guess what? 10 said, the notion that you should feel ashamed.
11 Every time you hit a guy, you're putting him 11 I'm just trying to get your position down.
12 at risk, but you're putting yourself at risk, 12 A. Correct.
13 too. I hit you, I better be sure that I'm 13 Q. That's it. And --
14 getting the better of the hit or I can get 14 A. And this is the view, my view --
15 hurt. 15 let's be clear on this. I'm not some profit
16 So this notion that I would be 16 out in the wilderness trying to attract
17 embarrassed to read this or say, Geez, I wish 17 followers. This is the view of the majority
18 I hadn't sent this e-mail, to me it's like 18 of the general managers in the National Hockey
19 this is stating something that's obvious as 19 League and it's the view of the National
20 that the sun's going to go down in that 20 Hockey League Players' Association who
21 direction some time tonight. I don't know 21 participated in the drafting of the
22 what time, but it's going down. This game 22 supplementary discipline process, who
23 can't be safe. It wasn't ever meant to be 23 participate in every hearing, who have a say
24 safe. It's a full fucking contact sport. 24 on every hearing. So this isn't Brian Burke's
25 Q. Okay. So the context of this is 25 view on life. This is something you can put

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1 in every dressing room. This is not a safe 1 Q. Mr. Burke, the court reporter has
2 place. This game is not safe. And every 2 handed you what's been marked as Exhibit
3 player would laugh. They'd be like, Well, no 3 NHL0120323 -- I'm sorry. It's Exhibit 11.
4 shit, it's not safe. That's why we play it. 4 The first page is Bates numbered NHL012323.
5 It's a contact sport. 5 The last page is Bates --
6 Q. Okay. So you -- okay. 6 MR. GOLDFEIN: 120323.
7 Are you aware of any studies that 7 MR. GUDMUNDSON: I'm sorry. Did I
8 have been done to measure the public's 8 misstate that? It's NHL0120323 and the
9 interest in the physical part of the game and 9 last page is NHL0120384.
10 fighting? 10 (Document review.)
11 A. Yes. 11 BY MR. GUDMUNDSON:
12 Q. And those studies tell you that 12 Q. I'm going to tell you that I'm
13 what? 13 going to only ask about 4, 6, and 19.
14 A. That fans want physical hockey. 14 A. All right.
15 Q. Okay. Including fighting? 15 MR. GOLDFEIN: Pages 4, 6 and 19?
16 A. Including fighting. 16 MR. GUDMUNDSON: Correct.
17 Q. Okay. 17 Q. Are you ready? Page 4 -- first of
18 A. Let's be clear on this, though. 18 all, this is a document on the very first page
19 If you're going to list the things we sell, is 19 it says Heads to the Head Analysis, General
20 fighting something our fans like, yes. If 20 Managers' Meeting, March 8, 2010.
21 that was the primary goal of what we sell 21 Do you recall attending this
22 wouldn't we want fighting to go up? Wouldn't 22 meeting?
23 we start the game with five gas and fight? 23 A. Without where it was and date, I
24 We've systematically eliminated 24 don't. But I'm sure I was there. I'll
25 it. We've reduced it to a level that we think 25 concede was there.
Page 195 Page 197

1 is the minimum we need. It's -- six years ago 1 Q. Okay. You were the GM of the
2 it was double what it is now. 2 Maple Leafs at this time, correct?
3 Q. But there is no automatic 3 A. Yep.
4 suspension for fighting, right? 4 Q. Okay. Page 4, there's three
5 MR. GOLDFEIN: Objection to the 5 bullet points. The heading on this one is
6 form of the question. Asked and 6 Hits to the Head/Concussions - In the News.
7 answered. 7 The first bullet point at the top says:
8 Q. There is no automatic suspension 8 "October 2009 - February 2010. NHL has been
9 for fighting, correct? 9 blamed/targeted/lumped in with hits to the
10 A. There's a five-minute penalty. 10 head and concussion issues that other hockey
11 MR. GOLDFEIN: Asked and answered. 11 leagues and sports have faced in the last five
12 And argumentative. 12 months."
13 Q. You can answer the question. Sir, 13 Have I read that correctly?
14 your testimony is that there's a five-minute 14 A. Yep.
15 penalty? 15 Q. And then the bottom bullet point
16 A. There's a five-minute penalty for 16 reads: "February 2, 201 - Independent
17 fighting. 17 Canadian Fan Poll - 80 percent of fans say
18 MR. GUDMUNDSON: Would you mark 18 that hits to the head in pro hockey are
19 that, please. 19 getting out of hand. Six out of ten Canadians
20 (Burke Exhibit 11, Hits to the 20 think those guilty of hits to the head should
21 Head Analysis General Managers' Meeting 21 be punished with long or even lifetime
22 March 8, 2010 bearing production numbers 22 suspensions for repeat offenders."
23 NHL0120323 through NHL0120384, marked 23 Did I read that correctly?
24 for identification as of this date.) 24 A. Yes.
25 BY MR. GUDMUNDSON: 25 Q. Do you believe that's consistent

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1 with what you testified to earlier that the 1 page number 6, please.
2 public wanted to keep hits to the head, even 2 A. (Witness complies.)
3 if legal, in the game? 3 Q. This is a slide that at the top
4 A. That's not what I testified to. 4 that says Hits to the Head/Concussions - In
5 MR. GOLDFEIN: That wasn't your 5 the News. And it reads -- the first bullet
6 question earlier. I'll object to the 6 point reads: "December 20, 2009 - Former
7 form of your question. 7 NHL'er Reggie Fleming found to have had brain
8 A. I will tell you what I said and 8 damage associated with repeated head trauma
9 I'll repeat what I said. Our fans want 9 connecting hockey for the first time to health
10 hitting in the game. The GM's and the union 10 risks linked to boxers and most recently
11 want that particular hit, which is body 11 football players. Fleming, who died in July,
12 contact that may involve contact with the 12 was found by Boston University researchers to
13 head. I don't know who took this fan poll. I 13 have chronic traumatic encephalopathy a
14 don't know what it is. I don't know if they 14 neurodegenerative disease known to cause
15 looked at the Matt Cooke hit and said what do 15 cognitive decline, behavioral abnormalities
16 you think of this hit. No idea about the 16 and ultimately dimension."
17 sciences behind it. I will tell you our fan 17 Did I read that correctly?
18 research has indicated fans want hard hitting 18 A. Yeah.
19 hockey. 19 Q. Do you know why this was presented
20 Q. Did you object to this when you 20 at this conference?
21 were at this meeting? 21 MR. GOLDFEIN: Objection to the
22 A. No, I -- 22 form of the question.
23 MR. GOLDFEIN: Object to the form 23 A. This looks like a chronological
24 of the question. Lacks foundation. 24 thing to me. So they would have listed it
25 Q. Did you raise this when somebody 25 as -- they're going through suspensions,
Page 199 Page 201

1 presented this to you as general manager of 1 anything related to that.
2 the Maple Leafs -- 2 Q. Okay.
3 MR. GOLDFEIN: Object to -- 3 A. So this would have been announced
4 MR. GUDMUNDSON: Let me finish the 4 at that time.
5 question, please. 5 Q. Okay. Well, this here, it says
6 Q. When you were sitting in the 6 "found to have had brain damage associated
7 meeting and this was presented to you did you 7 with repeated head trauma."
8 raise your hand and say I have an issue with 8 And if I'm recalling your earlier
9 that? 9 testimony is that you went to a general
10 MR. GOLDFEIN: Object to the form 10 managers' meeting and you were told that there
11 of the question. Lacks foundation. 11 was no scientific conclusion that associated
12 Q. You can answer. 12 repeated head trauma to long-term
13 A. I could care less what this fan 13 neurodegenerative issues.
14 poll said. We do some marketing stuff. We 14 MR. GOLDFEIN: Object to the form
15 did from time to time, some surveys. We do 15 of the question.
16 our own polling or surveys. I don't know if 16 Q. And so I'm wondering how this fits
17 this is our guy or the other guy. I could 17 in with that. This was information that you
18 care less. 18 presented to the general managers in December
19 Q. Okay. But you don't recall 19 2009 that says Reggie Fleming had brain damage
20 objecting to it or asking about it at the 20 and chronic traumatic encephalopathy and it
21 meeting? 21 says brain damage associated with repeated
22 A. No. 22 head trauma.
23 MR. GOLDFEIN: Object to the form 23 MR. GOLDFEIN: Object to the form.
24 of the question. 24 Is there a question? What's the
25 Q. Would you direct your attention to 25 question?

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1 Q. Isn't it true that the general 1 A. Yeah. Most.
2 managers were told that there is a connection 2 Q. Okay.
3 between repeated head trauma and long-term 3 A. Almost all.
4 neurological issues? 4 Q. Okay. This reads under Head Shot
5 MR. GOLDFEIN: Object to the form 5 in Other Leagues: "IIHF - In 2002, Checking
6 of the question. 6 to the head and neck area rule adopted. Any
7 A. This is recounting a news story. 7 player who directs a check or blow, with any
8 There are plenty of doctors on our group have 8 part of his body to the head and neck are of
9 looked at the scientific sample with this. I 9 an opposing player or 'drives' or force's the
10 don't know if there's anything in this about 10 head of an opposing player into the protective
11 Reggie Fleming's lifestyle. I don't know 11 glass or boards will be penalized (either
12 hereditary parts of it, whatever. I've gone 12 minor misconduct or, in the case of injury,
13 through this and fact that this is listed as a 13 and game misconduct)."
14 news item means that the League or someone at 14 Did I read that correctly?
15 the League is conceding that whatever is 15 A. Yes.
16 reported in the newspaper is accurate, no. 16 Q. Is this the same rule the NHL has?
17 Q. Okay. This doesn't have quotation 17 A. No.
18 marks on it, does it, think text? This 18 Q. How is it different?
19 doesn't look like it was quoted from the 19 A. A legal check that involves
20 article, though, does it? Somebody prepared 20 contact to the head is still permitted in our
21 this? 21 league.
22 MR. GOLDFEIN: Object to the form 22 Q. But not in the IIHF?
23 of the question. 23 A. Well, the IIHF isn't a league, but
24 Q. Does it have quotation marks on 24 in leagues that the govern, yes.
25 it? 25 Q. Okay. What leagues to they
Page 203 Page 205

1 A. No. 1 govern? Do they govern international
2 Q. Okay. And somebody -- do you know 2 professional leagues or just international
3 who prepared this presentation? 3 play between countries?
4 A. No. 4 A. You know what? It's a good
5 Q. Do you recall anybody wanting to 5 question. They certainly don't govern
6 discuss this slide at that meeting? 6 professional leagues in North America. The
7 A. No. 7 NGBs report to them. I assume that they would
8 Q. If you'll turn to page 19, please, 8 assert jurisdiction over all tournaments.
9 there's a title -- there's a slide here called 9 There's a tournament coming up next summer,
10 Head Shot Rules and Other Leagues. And it 10 for example, the World Cup of Hockey, that the
11 says IIHF. Is that the International Ice 11 IIHF sanctioned. It's BNHL rules. So --
12 Hockey Federation? 12 Q. Okay.
13 A. Yes. 13 A. So if the question is how is it
14 Q. And who are they? 14 different, I think I've answered that.
15 A. The International Ice Hockey 15 Q. Okay. You have answered that in
16 Federation is an international body that's 16 my mind at least.
17 comprised of the NGBs from all the 17 A. Yeah.
18 hockey-playing countries. National governing 18 Q. Is this -- let's talk with the
19 bodies. 19 Olympics since they govern these rules
20 Q. Okay. Does this govern the 20 applying to the Olympics, would you agree with
21 Olympics? 21 that?
22 A. Yes. 22 A. On paper. This is the rule in the
23 Q. Does it govern all the other 23 Olympics. The Olympics are actually
24 international play that goes on between 24 officiated by NHL referees. The games
25 countries? 25 involving a majority of players that play in

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1 the NHL. So when Canada plays the US in 1 read however they want. We prefer a rule that
2 Vancouver had Bill McCreary as the referee and 2 says contact with the head is permitted if the
3 it sure looked like an NHL standard to me. 3 check is otherwise legal. If you cross the
4 Q. So what do you mean by that? 4 line, Rule 48 says that targeting or principal
5 A. That this is not the rule that was 5 contact area is the head, that's a penalty.
6 applied in the Olympics in my view. 6 And the League's going to whack you on top of
7 Q. Okay. But this is the rule in the 7 it.
8 Olympics but you're saying it wasn't played 8 Q. So even though you could implement
9 there; is that right? 9 a rule and you could keep the physicality in
10 A. Yes. And in the Sochi as well. 10 the game as the way you just said the NCAA and
11 Q. Okay. What about other 11 the IIHF have, you don't want to do that
12 international play? Is it your view there, 12 because --
13 too, that these rules exist but they're not 13 MR. GOLDFEIN: Object.
14 enforced? 14 Q. I'm trying to understand why.
15 A. I think it's an impossible rule to 15 Because you feel you --
16 enforce. I think it's well intended but it 16 A. Well, I answered it ten times, but
17 disregards how hockey is played. So, yes, I 17 let me try it differently.
18 think it's frequently not called. I don't 18 This rule is put in -- in my mind
19 have the WCHL rule in front of me, but it 19 a lot of it is well intentioned, but a lot of
20 probably reads something similar. 20 it's, okay, we're going to tell everyone that
21 Q. Well, let's turn to the next page. 21 this is a priority for us. Which we've done
22 A. Okay. 22 with Rule 48. If you want to target a guy
23 Q. It's page 20. It's pretty short. 23 you're going to sit. You're going to get a
24 A. Okay. So NCAA. Contact to an 24 penalty and you're going to get suspended.
25 opposing player's head or neck in any manner. 25 And we all support it. It's great.
Page 207 Page 209

1 Now, in a game where there's, say, 70 body 1 But the clean otherwise legal
2 checks, Minnesota plays Wisconsin, I bet in 2 check that results in head contact, we want
3 half of them there's contact to the player's 3 that check in our game. As does the NHLPA.
4 head or neck. No calls. 4 So this is -- these guys play on a big sheet.
5 Q. Do you have data to support that 5 There's way less hitting. They want a certain
6 or is that just your view? 6 style of play, good for them. NCAA, they're
7 A. No. That's my observation. 7 worried about optics I think. I think if you
8 Q. Okay. 8 said we're going to apply this rule by the
9 A. They call the big hits, they go 9 book, you'd see that it's not applied in three
10 after the head shots, which I support. But an 10 quarters of the body checks in the game. My
11 otherwise legal hit that results in contact to 11 observation.
12 the head, they will call it as a penalty. But 12 MR. GUDMUNDSON: Okay. Let's go
13 they let tons of it go. IIHF let tons of it 13 off the record for lunch. I believe
14 go. 14 we're a few minutes past.
15 Q. So is it your view that you 15 THE VIDEOGRAPHER: The time is
16 shouldn't make the rule more strict? 16 1:08. We're going off the record.
17 A. No. I think what we should do is 17 (Luncheon recess taken at 1:08
18 keep the rule we have, we tighten up Rule 48, 18 p.m.)
19 we tighten up the boarding rules, and we've 19
20 got supplementary discipline. 20
21 The part you have to keep in mind, 21
22 Counselor, is against the backdrop of our rule 22
23 book there's this big giant gorilla in the 23
24 corner which is if you cross the line you're 24
25 going to get suspended. So the rules could 25

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1 AFTERNOON SESSION 1 MR. GOLDFEIN: Well, I'm trying to
2 (Time noted: 1:56 p.m.) 2 understand what it's from because
3 (Burke Exhibit 12, document 3 otherwise -- then I object to the use of
4 bearing production numbers NHL0483807 4 the partial document that was produced.
5 through NHL0483808, marked for 5 BY MR. GUDMUNDSON:
6 identification as of this date.) 6 Q. Okay. So if you look three
7 THE VIDEOGRAPHER: The time is 7 paragraphs down where it says: "Of 33 NHL
8 1:56. We're back on the record. 8 players..." do you see that?
9 *** 9 A. Yes.
10 BRIAN B U R K E, resumed and 10 Q. That reads: "Of 33 NHL players
11 testified as follows: 11 who responded to the question, 'Would you
12 EXAMINATION BY (Cont'd.) 12 support a penalty for hits to the head,' 27
13 MR. GUDMUNDSON: 13 voted yes, five players voted no and one
14 Q. Welcome back, Mr. Burke. We just 14 player said more research is required."
15 had a lunch break and we're back. The court 15 Did I read that correctly?
16 reporter has handed you what's been marked 16 A. Yep.
17 Exhibit 12. This document I will represent is 17 Q. So I believe you testified earlier
18 part of a much, much larger document that was 18 that the players wanted to keep -- or opposed
19 produced by the NHL in this litigation. This 19 to a blanket ban on hits to the head; is that
20 is just a two-page snippet starting with 20 correct?
21 NHL0483807 and ending with NHL0483808. 21 A. Yes.
22 I'm going to ask you some 22 Q. Does this square with that?
23 questions about the piece that starts at the 23 A. Yes.
24 bottom where it says Putting Heas Shots to a 24 Q. How?
25 Vote. Darren Dreger, TSN. 25 A. Because it's a question -- it
Page 211 Page 213

1 Do you see that? 1 doesn't refine the question at all as far as
2 A. Um-hum. 2 what they're voting for. Would you support a
3 Q. If you look two, three 3 penalty for hits to the head. I'd probably
4 paragraphs -- 4 say yes. What is it?
5 MR. GOLDFEIN: Before you do that 5 Q. Okay. So you think this is
6 can you tell us the date that this -- 6 consistent.
7 MR. GUDMUNDSON: The date I 7 A. No. I'm saying this is the wrong
8 believe is November 4th, 2008. It is 8 question.
9 not indicated on the document but I'll 9 Q. Okay.
10 make that representation on the record 10 A. The right question would be would
11 based on when this article was 11 you support a penalty for hits to the head, I
12 published. 12 think everyone would say sure. How does it
13 MR. GOLDFEIN: Just for the 13 work? You mean all hits to the head?
14 record, you're referring to packets of 14 Otherwise legal checks? No.
15 media reports that are collected by the 15 Q. Well, let's go two paragraphs down
16 NHL that were produced. And this is a 16 from there where you says: "Of 26 general
17 page out of the media clips for November 17 managers..."
18 4th, 2008? Is that what this is? 18 Do you see that?
19 MR. GUDMUNDSON: I'm saying 19 A. Yeah.
20 exactly what I said on the record. 20 Q. It says: "Of 26 general managers
21 MR. GOLDFEIN: I'm sorry? 21 who responded to the question 11 said yes -
22 MR. GUDMUNDSON: I said I'm saying 22 they would support a penalty for hits to the
23 exactly what I said on the record. 23 head; nine said no - and the six the said it
24 We're not going to do a colloquy about 24 is issue is too complex for a 'yes' or 'no'
25 this, Mr. Goldfein. 25 answer."

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1 So in your testimony you just gave 1 I said the issue was too complex.
2 if somebody were to just ask do you want a 2 Q. Okay.
3 penalty for hits to the head, nine out of 26 3 A. You got to ask the right
4 general managers said they didn't want to, 4 question -- not me. I'm not saying you got to
5 correct? 5 ask me the right -- they got to ask the right
6 A. And six said the issue was too 6 question.
7 complex. 7 Q. Okay. Let's go to the next page,
8 Q. Okay. 8 the very top where it says: "One of Burke's
9 A. So what's the rule? 9 colleagues..."
10 Q. Just below that it reads: "The 10 It reads: "One of Burke's
11 poll was anonymous, but Anaheim Ducks general 11 colleagues countered by saying, 'Yes, I
12 manager, Brian Burke went on the record with 12 believe we have to follow, for starters, what
13 vehement opposition to a new head checking 13 David Branch and the OHL has done with hits to
14 penalty. 'Our sport reacts to any injury'" -- 14 the head.' The Ontario Hockey League banned
15 A. Overreacts. 15 head checking there years ago and has seen
16 Q. I'm sorry. 16 penalties fall each year."
17 "'Our sport overreacts to any 17 Did I read that correctly?
18 injury that occurs in clusters', he said. 'I 18 A. Yes.
19 have been a GM for over 800 games and this is 19 Q. Do you know which colleague said
20 a dangerous path to start down'." 20 this?
21 So you were opposed to this -- 21 A. No, because he's a chicken shit
22 MR. GOLDFEIN: Object. 22 who wouldn't put his name on it.
23 Q. Did I read that correctly? 23 Q. Okay.
24 A. Yes. 24 A. So I don't do anonymous polls.
25 Q. Okay. So this generic statement, 25 They did an anonymous poll and I answered it
Page 215 Page 217

1 would you support a penalty for hits to the 1 with my name on it.
2 head, you were opposed to that. 2 Q. Sure.
3 MR. GOLDFEIN: Object to the form 3 A. I'm on the Selection Committee at
4 of the question. 4 the Hockey Hall of Fame and I put my name on
5 A. I can say to a poll, Do you want 5 every ballot. I don't know anonymous.
6 to end world hunger. What's everyone going to 6 Q. Are you aware of any other general
7 say? Yeah. Do you want to be taxed $22,000 7 managers who disagree with your opinion on
8 next year to end world hunger? No. 8 legal hits to the head?
9 The right question would be, Would 9 A. I'm sure there are but I don't
10 you support a rule that bans hits that target 10 know.
11 the head. And then I think you'd get 11 Q. You don't know of anybody
12 unanimity, players and GMs. This is not the 12 specifically that disagrees with you?
13 question. Penalty for hits to the head. So 13 A. No.
14 the players say yeah. So now I say, Okay, but 14 Q. Okay.
15 now this question really means would you 15 A. But I'm sure there are. I concede
16 support a ban on otherwise legal checks that 16 that.
17 result in contact to the head. You'd get a 17 Q. Okay.
18 different result. 18 A. I don't speak for 30 GMs.
19 This is a very simplistic answer, 19 Q. Of course not. I'm just wondering
20 a shitty simple poll and it has no probative 20 if you were in a meeting and anybody took you
21 value at all in my mind. 21 on in a debate or expressed that they were
22 Q. But you voted -- you said no, 22 disagreeing with you in this arena.
23 right? Your response to this was no? 23 A. No.
24 A. I forget how I wrote the first 24 Q. Okay. Well, except for
25 question. I probably would have said no. Or 25 unanimously here in this --

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1 A. Oh, yeah. Let's give that lots of 1 MR. GOLDFEIN: I object to the use
2 credence. Let's quote anonymous sources 2 of the document. It's undated.
3 saying I believe we have to do this. Put your 3 Apparently an article from a newspaper.
4 name on it or don't respond. 4 BY MR. GUDMUNDSON:
5 Q. Okay. Do you want what this 5 Q. Okay. Let's go to the middle of
6 person's talking about here when he says what 6 the page where it says: "By doing nothing..."
7 David Branch and the OHL have done with hits 7 Do you see that?
8 to the head? Is that the blanket ban on all 8 A. Yep.
9 hits, whether legal or illegal? 9 Q. It says: "By doing nothing, the
10 A. Yes. And the one that's called 10 NHL unfortunately raises the danger level for
11 about one out of six hits to the head, yes. 11 every youngster who plays the game and
12 Q. But in the next paragraph it says 12 imagines, no matter how absurd the dream, that
13 "The Ontario Hockey League banned head 13 they, too, are bound for glory."
14 checking three years ago and has seen 14 Did I read that correctly?
15 penalties fall each year." Doesn't that 15 MR. GOLDFEIN: Object to the form
16 indicate to you that there were fewer 16 of the question.
17 incidents? 17 A. Yes.
18 A. If you accept this as true. 18 Q. Do you agree with that?
19 Q. Yeah. 19 MR. GOLDFEIN: Object to the form
20 A. That it would say that their rule 20 of the question.
21 is working if it's true. And penalties for 21 A. Yes.
22 what? Penalties for this penalty? What does 22 Q. You agree with that?
23 that mean? Penalties have fallen each year. 23 A. I agree that that's what you read.
24 Penalties assessed for head checking? It just 24 Q. I'm sorry. Let me take a step
25 says has seen penalties fall each year. 25 back. Did I read the correctly?
Page 219 Page 221

1 Q. Okay. 1 A. Yes.
2 MR. GUDMUNDSON: Mark that, please 2 Q. Okay. Do you agree with what's
3 (Burke Exhibit 13, document 3 written here?
4 bearing production numbers NHL0290825 4 MR. GOLDFEIN: Object to the form
5 through NHL0290826, marked for 5 of the question.
6 identification as of this date.) 6 Q. That the NHL may raise the danger
7 BY MR. GUDMUNDSON: 7 level for every youngster who wishes to play
8 Q. Mr. Burke, the court reporter has 8 the game.
9 handed you what's been marked as Exhibit 13. 9 A. Okay. First off, I don't know the
10 It's a document that was similar to the last 10 date. If this is around the debate on
11 exhibit that was produced as part of a much 11 changing -- putting Rule 48 in. Head shots.
12 larger document. Rather than produce -- or 12 Raises the danger. Is he talking about
13 rather than enter the many, many pages here, 13 young -- like minor hockey, like youth hockey?
14 we've taken only a two-page snippet which 14 Q. I don't know. I'm just reading
15 starts at Bates number NHL0290825 and ends at 15 the article.
16 NHL0290826. 16 And in fairness, you were quoted
17 The first page seems to be an 17 at the top here where it says: "'I don't want
18 article written by Roy McGregor of the Globe 18 to hurt your feelings', Brian Burke told
19 and Mail. Hockey's strong enough it can 19 suntanning reporters in Boca Raton, Florida
20 survive change. 20 this week, 'but I don't care what sports
21 Do you see that? 21 writers think'."
22 A. Yes. 22 Did I read that correctly?
23 MR. GOLDFEIN: Do you have a date 23 A. It's probably --
24 of this? 24 MR. GOLDFEIN: Object to the form
25 MR. GUDMUNDSON: I do not. 25 of the question.

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1 A. It's probably not a proper quote 1 A. Yes.
2 because I wouldn't have said I don't want to 2 Q. What about eliminating all hits to
3 hurt your feelings. But the last part's 3 the head the way that the NCAA has endeavored
4 right. 4 to do?
5 Q. Okay. Being in Boca Raton, do you 5 I believe your testimony, and I
6 recall -- did you have a number of meetings in 6 know you have testified about this a lot
7 Boca Raton over the years? 7 today, about your view of the game and how it
8 A. Yes. 8 should be played, but couldn't they outlaw
9 Q. And the next paragraph you're 9 illegal, legal, and all hits to the head and
10 quoted again -- 10 still survive as a league?
11 A. I would agree. By doing nothing 11 MR. GOLDFEIN: Object to the form
12 we would be raising the danger level for every 12 of the question.
13 player in our League. But we did not do 13 A. Could we outlaw all hits -- well,
14 nothing. 14 you're assuming that rule is enforced. I
15 Q. Okay. If you go a couple 15 don't think it is. But, yes, that's one way
16 paragraphs down, one, two, three, where it 16 to put rules in place.
17 says "A century ago..." 17 Q. Okay. And changing the rules as
18 Did you read that? 18 was represented at least in this article, that
19 A. Yeah. 19 did not result in the destruction of the game,
20 Q. It reads that "A century ago 20 correct? The NHL game?
21 significant seem to come every year. They 21 MR. GOLDFEIN: Object to the form
22 went from two 30-minute periods to three 22 of the question.
23 20-minute periods. They dropped a man, 23 Q. Correct?
24 getting rid of the rover and having six 24 A. Correct.
25 players a side rather than seven. They 25 Q. So why couldn't you implement a
Page 223 Page 225

1 allowed goaltenders to drop to the ice for the 1 rule --
2 first time and eliminated the penalty for 2 A. We did. We put in Rule 48.
3 goalies being on their knees or backs - 3 Q. -- that banned all hits to the
4 Roberto Luongo being just one goaltender 4 head, legal or not?
5 fortunate to play in this era rather than 5 A. I don't know how many times I have
6 that." 6 to explain this. I hope this would be the
7 Did I read that correctly." 7 last time. One solution is the OHL rule which
8 A. Yes. 8 I think is imperfectly applied.
9 MR. GOLDFEIN: Object to the form 9 A similar solution is the NCAA
10 of the question. Move to strike. 10 rule, which I think is imperfectly applied.
11 Q. Do you believe that -- 11 A third possibility, which is the
12 MR. GUDMUNDSON: I'm sorry. I 12 one we've gone to, is we're going to allow
13 normally wouldn't address your objection 13 otherwise legal checks. No charging, no
14 but did I incorrectly read it? 14 leaving your feet, no boarding involved.
15 MR. GOLDFEIN: You're reading 15 We're going to allow otherwise legal body
16 hearsay into the record. Rank hearsay 16 checks that involve impact to the head.
17 that's unsupported by anything. 17 That's what we and the NHL Players'
18 MR. GUDMUNDSON: Oh, I got it. I 18 Association have decided is the rule we're
19 disagree with you completely. This is 19 going to apply. We can't change rules without
20 not the time for that objection 20 the NHLPA's consent. This is the rule that
21 according to the deposition protocol, 21 they've agreed to. So we want to keep that
22 but I understand what you're saying now. 22 level of hitting in, even know sometimes
23 BY MR. GUDMUNDSON: 23 players' heads get hit.
24 Q. Do you agree that these were the 24 Q. So you keep it in my choice, not
25 all significant changes to the game of hockey? 25 because you have to, correct?

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1 MR. GOLDFEIN: Objection to the 1 Mr. Burke, if you look on the
2 form of the question. 2 first page -- I'm sorry. Look at the second
3 A. I mean, we have to get the PA to 3 page. It's an e-mail at the bottom from Colin
4 agree to a change, so it's not purely our 4 Campbell to you April 12, 2010, correct?
5 choice. But, yes, we've elected that we're 5 A. Correct.
6 going to keep legal body checking in the game 6 Q. That reads: "Just checked into
7 even if it involves a head contact. 7 Sheraton. Coming from audit/finance meeting.
8 Q. Are you aware of any rules that 8 Turned on TV and saw you on this panel. When
9 have been passed when you were in the NHL 9 was this? And no fucking hitting until you're
10 office or one of the clubs that was passed 10 15??? What the hell. Has somebody asked the
11 without the NHLPA's consent? 11 kids what they want?"
12 A. Not in my tenure. 12 Did I read the correctly?
13 I think 48 -- the consent came 13 A. Yes.
14 subsequent to the League acting on it, but the 14 MR. GOLDFEIN: Object to the form
15 union consented to it. 15 of the question. Move to strike.
16 Q. What do you mean by that? 16 Q. Do you recall this panel?
17 A. Well, there was a debate -- the 17 A. Yeah.
18 GM's approved the rule and the union agreed 18 Q. Your response is above. I'm going
19 with it. It was fast-tracked in because it 19 to ask you some questions about that. About
20 was a mid-season rule change. And the union 20 three bullets down -- or three paragraphs down
21 agreed. 21 it says "Had a kid..."
22 Q. So the League implemented the rule 22 Do you see that?
23 before the union agreed? 23 A. Yeah.
24 A. No. Not implemented. The League 24 Q. You said: "Had a kit there who
25 approved a rule change mid season, which is 25 had to quick at 12 or 13 due to concussions.
Page 227 Page 229

1 not only unusual, unheard of. And the union 1 They had run one of the articles in the series
2 agreed. 2 on his sad story. I said I was sorry to hear
3 Q. Later agreed, right? 3 that but this is a contact sport. We can
4 A. Well, before the rule was 4 never make it completely safe. And that there
5 implemented. 5 were plenty of alternatives to contact
6 MR. GOLDFEIN: Object to the form. 6 sports - swimming, track, et cetera."
7 Q. Were they punishing that rule 7 Did I read the correctly?
8 through the supplemental discipline before the 8 A. Yes.
9 NHLPA approved it? 9 MR. GOLDFEIN: Object to the form
10 A. I don't know the timing. 10 of the question. Move to strike.
11 Q. Okay. 11 Q. We've had some testimony before
12 A. I don't think so. I don't know 12 on, you know, making the game completely safe
13 the timing of that. 13 so we don't need to go over that.
14 MR. GUDMUNDSON: Mark that, please 14 Do you think that you risk having
15 (Burke Exhibit 14, e-mail dated 15 parents put their kids in sports other than
16 4/13/2010 bearing production numbers 16 hockey due to the level of violence in the
17 NHL0032626 through NHL0032630, marked 17 game?
18 for identification as of this date.) 18 A. The level of contact in the game.
19 BY MR. GUDMUNDSON: 19 That's why we raised the hitting age. That's
20 Q. Mr. Burke, the court reporter has 20 why the hitting age was raised I think both
21 handed you what's been marked as Exhibit 14. 21 Canada and the US with our backing to Bantam.
22 It's a document that was produced by the NHL 22 So the kids didn't drop out at Pee-Wee age.
23 in this litigation. The first page bearing 23 This kid shouldn't have had to quit due to
24 the Bates number NHL00322626 and the last page 24 concussions.
25 bearing the Bates number NHL0032630. 25 Q. So why was the -- why is there a

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1 hitting at the Bantam level then? 1 said great. Play hockey till you're 60.
2 A. Well, there is now. It used to be 2 Wonderful. Is this a story? Is this part of
3 at Pee-Wee level. Now they pushed it up, you 3 the story that you prefer non-checking hockey?
4 can't hit till you're 14 or 15. 4 That's a story now? What about the kids that
5 Q. So why should they be able to hit? 5 want to play checking hockey?
6 A. Well, they have to learn to hit at 6 We raised the age to make it safer
7 some point. 7 for Pee-Wee aged kids and to keep kids in the
8 Q. Because if they want to play in 8 game. It has to come in at some point. Now,
9 the NHL -- 9 when I say it has to come in, for the kids
10 A. No. If they want to play hockey. 10 that want to play checking hockey. There's
11 If they want to play hockey the way we play 11 no-check leagues in every state, every
12 hockey. If they want to play NCAA. If they 12 province you can play. If you want to play
13 want to play high school hockey in Minnesota, 13 hockey and not get hit, we have leagues for
14 guess what, there's hitting. So at some point 14 you. If you want to play this game, hitting
15 it has to go in. We raised the age to keep it 15 has to come in at some point. What's the best
16 safer and have more kids stay in the game. 16 age. We've concluded it's Bantam age.
17 Q. Okay. A couple paragraphs down it 17 Q. When you say "this game" you mean
18 says: "Two dad promoted..." 18 the NHL game?
19 Do you see that? 19 A. I mean hockey the way it's played
20 A. Yeah. 20 across the world with body contact.
21 Q. You say: "Two dads promoted 21 Q. Okay. What about legal hits to
22 no-checking hockey. I said that's great, but 22 the head as they're defined by the NHL today,
23 the kids who play in checking are all 23 is that allowed at the Bantam level?
24 volunteers. Nobody made them play. Why no 24 A. I don't know what -- I think it
25 similar outcry over football? I said, as I 25 varies province to province. Maybe not. They
Page 231 Page 233

1 have for years, that I could live with no 1 probably have something like an OHL rule.
2 checking up to bantam, but that it had to come 2 Q. The last line in that e-mail you
3 in then." 3 write: "Anyone who disagrees with me can
4 Did I read that correctly? 4 happily go fuck themselves in my considered
5 A. Yes. 5 opinion."
6 Q. Do you think there is no similar 6 Did I read that correctly?
7 outcry over football? 7 A. Yeah.
8 A. This is a panel that was put on by 8 Q. Was anybody disagreeing with you
9 name by a guy name Ronald Cribb from the 9 about this at this point?
10 Toronto Star. He wrote it as a front-page 10 A. No. But I'm sure there are people
11 story and he got an award for it. And he 11 that do and think that I care about their
12 found four horror stories from Toronto Minor 12 opinion so this is generic comment to those
13 Hockey. How we call youth hockey in Canada. 13 that don't.
14 One was a kid who had to quit due to 14 Q. Okay. Campbell responds but on
15 concussions. And said further that his coach 15 the first page it's your response to Mr.
16 made him play with concussions. And I said to 16 Campbell. Right in the middle of the page it
17 him, I don't believe that your coach made you 17 says: "Not if we keep fighting."
18 play with a concussion. No one does that 18 You write to Mr. Campbell: "Not
19 anymore. But his dad was there. I said, 19 if we keep fighting. This was a
20 Where were you on this? So his coach said he 20 hockey-bashing forum that I turned completely
21 had to play and you said you could play. 21 around. Hitting has to stay. You are doing a
22 When did we give parenting over to 22 great job of penalizing the idiots but keeping
23 coaches? 23
24 The second kid -- these two kids 24
25 said we want to play non-contact hockey. I 25 times do I call you? Don't stop fighting to

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1 keep contact in the game. We only have to 1 Q. And the CCHA, that was a major
2 hang on a few more years. Thank God the boss 2 hockey conference at the time, correct?
3 gets it most of the time." 3 A. Correct.
4 Did I read that correctly? 4 Q. It had Michigan and Michigan State
5 A. Yeah. 5 in it.
6 Q. What did you mean by "We only have 6 A. Correct.
7 to hang on a few more years"? 7 Q. Today we have the Big 10, right?
8 A. I'm going to be out of this game 8 We don't have the WCHA and the CCHA and the
9 in a few years. 9 way they were at that time.
10 Q. Oh. 10 A. Correct.
11 A. And they can do what they want 11 Q. Could you tell me what was going
12 once I leave. 12 on here?
13 Q. And what about "Thank God the boss 13 A. Yeah. Mr. Beagan sent a letter to
14 gets it most of the time," what did you mean 14 Commissioner Bettman. Commissioner Bettman
15 by that? 15 was relatively new. This was his first year
16 A. The boss. The Commissioner. He's 16 in the League in 1993. I think he came into
17 with us on the -- he's understands this issue. 17 power in January of '93. Roughly -- I'm close
18 When I say he gets it most of the time, we 18 to that. I came in that summer. And he had
19 disagree on some other things. Broadcast 19 sent a letter, November 3rd, and encouraged
20 policies and other things. But on the contact 20 Gary to get rid of fighting.
21 issue he gets it. 21 Bill Beagan was a very colorful
22 Q. And he agrees with you on that? 22 guy who thought he had a lot of influence and
23 A. Yeah. 23 said to Gary it's time to get rid of fighting
24 Q. Okay. 24 in the NHL.
25 A. And when I say not if we keep 25 Q. Okay. Have any other hockey
Page 235 Page 237

1 fighting, that's not talking about fighting in 1 associate -- college hockey associations or
2 hockey. 2 conferences approached the League with a
3 Q. I understand. 3 similar request, to your knowledge?
4 A. I mean if we keep fighting this 4 A. Not to my knowledge. And this
5 issue. 5 was -- I believe this came from Bill Beagan,
6 Q. Okay. Fighting to keep hitting in 6 not from CCHA.
7 the game. 7 Q. Okay. Well, he sends it under his
8 A. To keep hitting in the game. 8 title of Commissioner CCHA, correct?
9 Q. Okay. 9 MR. GOLDFEIN: Objection. This
10 (Burke Exhibit 15, letter dated 10 is -- I don't see Mr. Beagan's letter.
11 November 19, 1993 bearing production 11 I only see the response. Object to the
12 numbers NHL1702605 through NHL172611, 12 form of the question.
13 marked for identification as of this 13 MR. GUDMUNDSON: I'm sorry.
14 date.) 14 That's a very good point. His letters
15 BY MR. GUDMUNDSON: 15 were not produced to us. We ask that
16 Q. Mr. Burke, the court reporter has 16 those be produced to us immediately.
17 handed you what's been marked as Exhibit 15. 17 MR. GOLDFEIN: We don't have them.
18 This is a document that was produced by the 18 Q. And you address yours to him in
19 NHL in this litigation. The first page 19 his formal capacity of Commissioner of the
20 bearing the Bates number NHL1702605. The last 20 CCHA.
21 bearing Bates number NHL 1702611. 21 A. Correct. And what I'm telling you
22 Do you recall having this exchange 22 is I don't think the CCHA was polled on this
23 of letters with Bill Beagan of the Central 23 or was asked to send this. I think Bill
24 Collegiate Hockey Association? 24 Beagan is a very opinionated, colorful guy,
25 A. Yes. 25 and just said the letter on letterhead if it

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1 was letterhead. 1 league was fucked up?
2 Q. And do you know why he wanted the 2 Q. Okay. So you think that he should
3 NHL to drop fighting? 3 have a been in support of fighting in order to
4 A. I assume because he doesn't think 4 get rid of the violence that was there?
5 there should be fighting. 5 A. No. I don't care what other
6 Q. Okay. If you turn to the page 6 leagues do. This is the solution we've
7 ending 608. It would be like the fourth page. 7 arrived at with the NHLPA. We think it makes
8 A. Also -- sorry. He also wanted to 8 sense.
9 eliminate the red line. 9 I think there's a real risk when
10 Q. Are you on the page ending 608? 10 you play college hockey that you're going to
11 A. Yep. 11 get a broken neck or a serious injury because
12 Q. This is of your letter to him 12 the players are out of control with full face
13 January 7, 1994. One, two, three, four -- 13 masks on. I think you could call a penalty
14 wait. One, two -- the fifth paragraph down 14 almost every shift in some of the college
15 where it says: "As to the state of college 15 games I go to.
16 hockey..." 16 So that was my point. Bill
17 A. Yes. 17 Beagan's never going to agree with me that
18 Q. It reads: "As to the state of 18 they have mayhem in their League. But I
19 college hockey, I do not to retreat from my 19 believe they do.
20 earlier position regarding the unacceptable 20 Q. Okay. With respect to mayhem and
21 level of violence in college hockey." 21 people breaking their necks, have you ever
22 Did I read that correctly? 22 read a study of anything about -- or anything
23 A. Yes. 23 about the incidence of such injuries in
24 Q. Were you having a debate with the 24 college hockey?
25 Commissioner of the CCHA about the level of 25 A. No.
Page 239 Page 241

1 violence in college hockey? 1 Q. Okay. This is just your personal
2 A. It's in here. This is my -- if 2 feelings?
3 you go to the third paragraph on page 1, it 3 A. Yep.
4 says "...in large part on the experience of 4 Q. Okay. We can put that one aside.
5 college hockey. They believe that college 5 Well, let me ask you one more
6 hockey is organized mayhem. The stick work, 6 question about that document.
7 hits from behind, elbows, cross-checks to the 7 Was there a ban on fighting in the
8 face, and other incidents in college hockey 8 CCHA at the time that he sent this letter?
9 are sometimes nothing short of fighting. Some 9 A. No. There was an ejection rule
10 might say the violence is a far greater 10 for fighting.
11 problem for college hockey than it is for 11 Q. Is that the same rule they have
12 professional hockey where they wear a full 12 today?
13 face mask." 13 A. Yeah. As far as I know.
14 So that's the second reference to 14 Q. Okay. So you were automatically
15 it. I did not -- in the second letter I said 15 ejected. And did you get a suspension in
16 I'm not backing away from my earlier position. 16 college hockey at that time, to your
17 Q. So wouldn't -- but, candidly 17 knowledge?
18 speaking, wouldn't the Commissioner of the 18 A. No, I don't think so.
19 CCHA know more about the level of violence in 19 Q. Okay.
20 hockey than you? In college hockey than you? 20 A. Maybe it was that game or the
21 MR. GOLDFEIN: Object to the form 21 next. I don't know. But there wasn't a ban
22 of the question. 22 fighting. The question is when players
23 A. No. I'd like to answer that. 23 fought, what was the penalty.
24 So, yes. Wouldn't he have a 24 Q. You're making a distinction there
25 vested interest in arguing with me that his 25 because I believe you testified earlier that

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1 you didn't believe that any amount of penalty 1 for you. I am thinking of coming out and
2 could really stop, that some people were going 2 saying it's time to get rid of fighting or at
3 to fight anyway. 3 least take major steps to reduce it. I'll
4 A. Yeah. 4 need my boss's okay but thinking strongly of
5 MR. GOLDFEIN: Object to the form 5 it. I hated fighting. Had to do it though.
6 of the question. 6 Particularly in the '70s but it is stupid. I
7 A. They have fighting in college 7 don't remember one fight on pond hockey or
8 hockey. 8 ball hockey. Will I get fried? Will it work?
9 Q. Okay. 9 I mean, the game in the NHL without the great
10 A. They address it differently with 10 equalizer, i.e., fighting, like now Cooke can
11 penalties. 11 run whoever he wants and there is no pressure
12 Q. But it might be at a dramatically 12 on him to fight like there was in the '70s or
13 reduced amount, correct? 13 '80s. Think about it."
14 MR. GOLDFEIN: Object. 14 Did I read that correctly?
15 A. It's less than ours. 15 A. Yes.
16 Q. Okay. 16 MR. GOLDFEIN: Object to the form
17 (Burke Exhibit 16, e-mail dated 17 of the question. Move to strike.
18 1/12/2009 bearing production number 18 Q. Has Mr. Campbell ever spoken to
19 NHL0031371, marked for identification as 19 you about his feeling on fighting in this way?
20 of this date.) 20 A. I had an e-mail exchange with
21 BY MR. GUDMUNDSON: 21 Shanny over it. I don't think Colie did. I
22 Q. Mr. Burke, the court reporter has 22 don't think his reflects his view to be honest
23 handed you what's been marked as Exhibit 16. 23 with you. But I think he's doing a trial
24 It's a document produced by the NHL in this 24 balloon with Bob McKenzie, but I wasn't part
25 litigation. Bates numbered NHL0031371. It's 25 of this e-mail trail. So...
Page 243 Page 245

1 a single-page document. This is a number of 1 Q. Okay. Do you mean that based on
2 e-mails and your name does not appear on them. 2 his experience, where he says he hated it,
3 Colin Campbell and Bob McKenzie's name appear. 3 that he was justified in this position?
4 Do you know who Bob McKenzie is? 4 MR. GOLDFEIN: Object to the form
5 A. He's a respected hockey analyst 5 of the question.
6 with TSN. 6 A. I mean, you want me answer what
7 Q. In the very top e-mail Colin 7 Colin Campbell things?
8 Campbell -- I'll skip the first couple of 8 Q. Well, let me ask you this. If a
9 lines and I'll go to where it says "Question 9 player did not want to get hit in the face by
10 for you." 10 another person on the ice, would it be okay
11 Do you see that? 11 for them to come out and say we should ban
12 A. Yeah. 12 fighting?
13 Q. Colin Campbell writes to Bob 13 MR. GOLDFEIN: Object to form.
14 McKenzie -- and this is -- sorry. The date on 14 Q. Or would that go directly against
15 this is January 12, 2009. Do you know what 15 the way you view and the way you say, We, the
16 Colin Campbell's role was at that time? 16 NHLPA, and the NHL, views the way the game
17 A. He would have been the Vice 17 should be played?
18 President of Player Operations or Hockey 18 MR. GOLDFEIN: Object to the form
19 Operations for the NHL. 19 of the question.
20 Q. And that was the same role that 20 A. This is not a closed debate.
21 you held before you left for the Vancouver 21 Players come out all the times and say things
22 Canucks? 22 about us and they think this rule should be
23 A. In part, yes. 23 different. There's no censorship on that. A
24 Q. I'm going to read this. Colin 24 player can come out and say it's time to get
25 Campbell writes to Bob McKenzie. "Question 25 rid of fighting. Over time I believe a number

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1 have. And an executive can do it. I mean, 1 vote. And it was tabled before it went around
2 there are guys who have taken positions 2 the room.
3 publicly. I don't speak for all 30 GMs. I 3 Q. What was put to a vote, the formal
4 know that. 4 rule?
5 But I've never -- this could be a 5 A. Yeah.
6 trial balloon to a reporter, but Colie's never 6 Q. How often has that come up in the
7 came into a meeting and said it's time to get 7 years since then, since your first year as a
8 rid of fighting. Never once. 8 GM?
9 Q. Well, it seems to me from this 9 A. Never.
10 e-mail he seems like -- he asks "Will I get 10 Q. That was the only time?
11 fried?" Do you think that he would be fried 11 A. That I recall, yes.
12 if he raised this position in those quarters? 12 Q. So when you were talking about
13 MR. GOLDFEIN: Object to the form 13 everybody but one putting their hands in the
14 of the question. Calls for speculation. 14 air to keep fighting in the game, that's the
15 And lacks foundation. 15 meeting you're talking about?
16 A. Do I think a person who says it's 16 A. Yes.
17 time to get rid of fighting, will get fried, 17 Q. Your first year as a GM?
18 there'll be a lot of opposition to it. 18 A. No, no. No. The last GM meeting
19 Q. I'm talking about Colin Campbell 19 I went to -- so it would be about 18 months
20 who has a very senior role in the NHL. 20 ago.
21 MR. GOLDFEIN: Object to the form 21 Q. Okay.
22 of the question. 22 A. Roughly. Fourteen months ago.
23 A. You'd have to ask him. I don't 23 They took a poll. And one GM
24 know. 24 was -- I believe it was the last meeting I was
25 Q. Would you want to fry him if you 25 at. It was in the last three years. And the
Page 247 Page 249

1 heard him say that at a meeting? 1 poll was 29 to one. What I'm talking about
2 MR. GOLDFEIN: Object to the form 2 was at a Board of Governors meeting in the
3 of the question. 3 '92/93 season I was with Hartford, there was a
4 A. I'm big on this debate being 4 vote at the governor level to eliminate
5 conducted behind closed doors. If you notice 5 fighting. And it was clear it didn't have
6 my public commentary, it's sporadic. It's 6 enough support and it was tabled. The vote
7 where I think it needs to be addressed because 7 started and then the motion was withdrawn.
8 it's become public. In general my expression 8 Q. Was there any discussion
9 on these topics is in GM's meetings. 9 surrounding that vote at that meeting?
10 Q. Okay. 10 A. Yeah. Each team was allowed to
11 A. So I might fry him for saying why 11 express their feelings on it.
12 on earth would you do that publicly. Let's 12 Q. What kind of feelings were
13 talk in the GM room first. Like I say, the 13 expressed? Did you -- first of all, let me
14 last meeting I was at they took the last poll 14 take a step back.
15 I know about fighting and one GM opposed -- 15 Did you express any feelings?
16 was in favor of eliminating fighting. Or 16 A. Yeah. Of course I did.
17 putting more severe penalties in. 17 Q. What did you say? You don't have
18 Q. Has the NHL, to your knowledge, 18 to repeat what you said repeatedly today but
19 ever considered banning fighting or at least 19 was it similar to what you said today?
20 imposing penalties severe enough to reduce it 20 A. Yeah. I'll let you guess what I
21 to the level of college hockey? 21 said.
22 A. Yeah. There was a vote on it. My 22 Q. Did anybody come out in
23 rookie year as a GM -- or my first year with 23 opposition?
24 the League, '92 or '93, when they modified the 24 A. A couple of teams. But it was
25 instigator rule and said -- it was put to a 25 clear it was going to feel and someone at the

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1 League said let's take it off the table. 1 bearing production numbers NHL1293533
2 Q. Okay. 2 through NHL1293534, marked for
3 A. Now, the instigator rule was 3 identification as of this date.)
4 modified at that point. It used to be a game 4 BY MR. GUDMUNDSON:
5 misconduct. And it was modified to a 5 Q. Mr. Burke, the court reporter has
6 misconduct. Minor penalty and a misconduct I 6 handed you what's been marked as Exhibit 17.
7 believe. So it was, all right. Let's allow 7 This is another document that has been
8 players to settle things, but let's no go 8 produced as part of a much, much larger
9 crazy here. So there was a modification made 9 compilation. We have taken two pages and made
10 at that time. That's the last time I remember 10 them an exhibit. The first page is NHL1293533
11 this coming to a vote was 22 years ago, 23 11 and the second is the very next page,
12 years ago. 12 NHL1293534.
13 Q. Okay. Now, you -- I think you 13 This -- I'm going to direct your
14 testified earlier that you were aware of some 14 attention to the article that starts at the
15 studies that were done to gauge fan interest 15 midline about page 1 where it reads -- and the
16 in fighting and contact and things like that? 16 date is January 19, 2009.
17 A. Yeah. 17 "Montador adds 'bite on the blue
18 Q. Do you know when those were done? 18 line'. The defenseman doesn't advocate
19 A. I think the League does them on an 19 fighting but he has seven fighting majors this
20 ongoing basis. I don't know if they do it 20 season."
21 annually or semi-annually. The League 21 Did I read that correctly?
22 conducts its own fan poles and surveys. 22 MR. GOLDFEIN: Object to the form
23 Q. Okay. I mean, here's another -- I 23 of the question.
24 guess one more question about this e-mail. 24 A. Yes.
25 Colin Campbell writes: "I don't remember one 25 Q. Starting in the second paragraph
Page 251 Page 253

1 fight on pond hockey or ball hockey." 1 down where it says "Montador, 29" on the
2 What does he mean by that? Does 2 second page.
3 he mean playing as a youth? 3 A. Yes.
4 A. Yeah. I do, by the way, but 4 Q. It reads: "Montador, 29, has
5 that's fine. 5 seven fighting major penalties this season, a
6 Q. You're from Edina, correct? 6 total that ranks behind only resident enforcer
7 A. Yes. 7 George Parros' 11 among Ducks scrappers.
8 Q. Well, I played in Edina, too, but 8 Adding 'bite on the blue line', as former
9 I don't recall that. But we have different 9 Ducks general manager Brian Burke advertised
10 eras. 10 when he signed the free agent away from the
11 A. You don't have two older brothers. 11 Floridan Panthers in July, Montador also leads
12 Q. That's a very good point. 12 the club with 92 penalty minutes."
13 Do you know where Colin Campbell 13 Right below that is reads: "'Even
14 is from? 14 though I do it, I still don't condone
15 A. Yeah. 15 fighting', Montador said."
16 Q. Where? 16 Did I read that correctly?
17 A. He's from Southwestern Ontario. 17 A. Yep.
18 It begins with a T. Like Toningsly or -- 18 MR. GOLDFEIN: Object to the form
19 MR. SHAMIE: Tillsonberg. 19 of the question. Move to strike.
20 A. Tillsonberg. 20 Q. Did Steve Montador ever let you
21 Q. Tillsonberg, okay. Well, we can 21 know that he didn't want to fight or that he
22 put that one aside. 22 didn't condone it?
23 MR. GUDMUNDSON: Mark that, 23 A. No.
24 please. 24 Q. Was fighting part of Montador's
25 (Burke Exhibit 17, document 25 job description?

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1 A. This is January 19th, 2009, right? 1 the question.
2 Q. This is January 19th, 2009. 2 Q. You're aware that -- well, let me
3 A. Okay. I think -- I'm pretty sure 3 take a step back.
4 I'm gone by then, but he did not express that 4 What would have happened if Steve
5 to me, no. 5 Montador had come to you or somebody else on
6 Q. Okay. Was fighting part of his 6 the team and said I don't want to fight
7 job description? 7 anymore?
8 A. Yes. 8 MR. GOLDFEIN: Object to the form
9 Q. How did he know that it was part 9 of the question.
10 of his job description? 10 A. It's a hypothetical question,
11 A. You asked that earlier as if 11 which I don't think I have to answer, but I
12 someone goes up to him and says it's part of 12 would have said, Fine, then be a useful
13 your job description. This is how a guy got a 13 player. Be a good teammate.
14 ten-year career in this because he did fight. 14 Q. Even though it was part of his job
15 He was a actually a right shot defenseman. He 15 description that would have been fine?
16 could play. A quality person. A good 16 A. You keep coming back to the
17 teammate. But that was part of your job 17 description. When I say job description, this
18 description, not like the teams hand you one 18 is a player who fought in junior hockey or
19 the first day of camp. 19 college hockey, wherever he's drafted out of.
20 Q. Was he expected to fulfill all of 20 I didn't draft him. These players write their
21 his job descriptions while with the Anaheim 21 order job descriptions, if you will. So when
22 Mighty Ducks? 22 you draft a guy and he had 14 fighting
23 A. Yes. 23 majors -- I'm making this up -- in his draft
24 It was actually with the Ducks. 24 year, this is a guy that knows it's part of
25 Not the Mighty Ducks. It was after the name 25 his job description. It's not like I come in
Page 255 Page 257

1 change. But, yes, he was. 1 and say, You know what, you're going to have
2 Q. They did have a name change. I 2 to fight 14 times this year. So, yes, it's
3 apologize for that. 3 part of his job description. Part of his
4 The quote right below Montador's 4 makeup, if you want a different term. This is
5 quote says: "Still if the need arises, 5 a guy who's expected to fight when the
6 Montador can be counted on to drop the gloves 6 situation arises. Even he admits here, I
7 again Tuesday night against the New York 7 don't like to do it, but you can count on me
8 Rangers at Madison Square Garden. Under 8 to do it when I have it. What's the exact
9 optimum circumstances his next bout won't come 9 quote. "Even though I do it, I still don't
10 at the end of grueling on-ice stint. 10 condone it. Is there ever an ideal to time
11 'Is there ever an ideal time to 11 fight? You know, if you're rested it's
12 fight?' Montador asked. 'If you're rested, I 12 better." He's basically saying, yeah, it was
13 guess it's better than not. Yeah, I was 13 time to fight. Not the coach told him to
14 tired, but I think he (Nolan) probably was, 14 fight. Not anyone said it's in your job
15 too. We were all battling on that shift'." 15 description, you better fight. It just
16 Did I read that correctly? 16 happened on the ice. They were battling. He
17 MR. GOLDFEIN: Object to the form 17 got into fight with Owen Nolan. Both tired.
18 of the question. 18 No idea how the fight went. I wasn't there.
19 A. Yes. 19 Q. So if a player who fights on a
20 Q. I believe your testimony is that 20 team changes their mind at some point, I
21 Steve Montador never expressed to you or to 21 believe you testified that you believe they
22 anyone, to your knowledge, that he didn't want 22 write their on job descriptions. Assuming
23 to fight; is that correct? 23 that's true, and I don't know if it is or
24 A. Right. 24 isn't, but if somewhere along the line they
25 MR. GOLDFEIN: Object to form of 25 might have a kid, whatever happens, they might

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1 be a youth coach, whatever happens, they don't 1 Q. Do you know why this was put
2 want to do it anymore, and they're not that 2 together?
3 skilled, what happens to them? 3 A. No.
4 MR. GOLDFEIN: Objection to the 4 Q. So you just showed up at the
5 form of the question. 5 meeting and there was a presentation and they
6 A. They'd be free to stop fighting. 6 just handed this out or it was on a screen or
7 We don't tell players to fight. We've had 7 something?
8 players do it. They end up not playing unless 8 A. Yeah.
9 they can contribute. Monte could play. Steve 9 Q. Did you have any forewarning or an
10 Montador could play. So, again, right shot 10 agenda or something that this was going to be
11 defenseman and a belligerent guy. I'm 11 brought up?
12 guessing in his fights -- it said he had seven 12 A. The agenda goes out.
13 this year. Yeah, seven at this point. I'm 13 Q. They send the agenda out before
14 guessing three or four of those came to him. 14 the meeting?
15 Where he drilled somebody. That's kind of the 15 A. Yes.
16 player he was. 16 Q. How far in advance?
17 But if he just said to me, Look, I 17 A. Not far in advance. To prevent
18 really don't want to do it anymore, I would 18 media leaks. Usually three or four days.
19 have said then You better make your 19 Q. It --
20 contribution other ways. 20 A. Within three or four days.
21 Q. Yeah. And if he wasn't skilled 21 Q. I think before that you said to
22 enough to make contributions -- 22 prevent some issue?
23 A. Then he'd probably end up in the 23 A. Media leaks.
24 America League or out of hockey. 24 Q. Oh, media leaks. Okay.
25 Q. So in the minors or out. 25 Can I direct your attention to
Page 259 Page 261

1 A. Yeah. 1 page 13 of this document, please. The numbers
2 Q. Okay. 2 are at the bottom right-hand corner.
3 (Burke Exhibit 18, Fighting 3 MR. GOLDFEIN: Why don't you take
4 Analysis General Managers' Meeting March 4 a look at the document. And I'll object
5 9, 2009 bearing production numbers 5 to the use of the document because it
6 NHL0022969 through NHL0023034, marked 6 apparently has some handwritten notes on
7 for identification as of this date.) 7 it. So it may not be the final. I
8 BY MR. GUDMUNDSON: 8 don't know.
9 Q. Mr. Burke, the court reporter has 9 MR. GUDMUNDSON: Well, to the
10 handed you what's been marked Exhibit 18. 10 extent you're instructing him to stop
11 This is a document that was produced by the 11 and read this entire document, these
12 NHL in this litigation. The first page 12 documents were produced many days ago
13 bearing the Bates number NHL0022969 and the 13 pursuant to the court order that you
14 very last page bearing the Bates number 14 guys wanted. We're not going to go
15 NHL0023034. 15 through the entire thing again.
16 First of all, do you recognize 16 MR. GOLDFEIN: Well, let me put it
17 this document? 17 to you this way. You are going to use
18 A. Yes. 18 probably no more than 30 or 40 documents
19 Q. Okay. The title on the first page 19 in this case -- in this deposition. You
20 is Fighting Analysis General Managers' Meeting 20 produced over 20,000 pages of documents.
21 March 9, 2009. Were you at that meeting? 21 499 exhibits -- proposed exhibits for
22 A. Yeah. 22 this deposition. If you think --
23 Q. You were the GM at some time 23 MR. GUDMUNDSON: Pursuant to the
24 Toronto Maple Leafs at that time? 24 exact protocol that you insisted upon.
25 A. Yeah. 25 MR. GOLDFEIN: That's right. And

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1 if you think -- but you didn't have to 1 each one of these documents for hours on
2 produce -- nobody forced you to produce 2 end --
3 500 exhibits consisting of tens of 3 MR. GOLDFEIN: He can take a look
4 thousands of pages. If you think he's 4 at the document. And you should know
5 read everything, or we had the 5 better because you're doing exactly at
6 opportunity to review everything, we 6 this deposition which you could have
7 would have had needed six months to 7 done before you produced the exhibits,
8 prepare for the deposition. 8 which is take out of a packet that
9 MR. GUDMUNDSON: Well, he 9 consisted of hundreds of pages of news
10 testified earlier that he -- 10 articles the two pages that you chose to
11 MR. GOLDFEIN: So he can read 11 use.
12 these documents -- 12 MR. GUDMUNDSON: Which you
13 MR. GUDMUNDSON: That's enough. 13 objected to.
14 MR. GOLDFEIN: He can read these 14 MR. GOLDFEIN: That's right.
15 documents. 15 Which I have objected to.
16 MR. GUDMUNDSON: That's enough. 16 MR. GUDMUNDSON: Okay.
17 Then we're going to add time to the 17 MR. GOLDFEIN: For that precise
18 deposition. 18 reason is why I objected to it.
19 MR. GOLDFEIN: We're not going to 19 MR. GUDMUNDSON: We don't need any
20 add time. 20 more colloquy on the record. My
21 MR. GUDMUNDSON: We certainly are. 21 position has been stated clearly.
22 MR. GOLDFEIN: No, we're not. 22 MR. GOLDFEIN: As is mine.
23 MR. GUDMUNDSON: Then that is 23 BY MR. GUDMUNDSON:
24 something we're going to get the judge 24 Q. And to be clear with you, Mr.
25 on the phone for or else we'll bring Mr. 25 Burke, I want you to have the full context of
Page 263 Page 265

1 Burke back. 1 what you're saying and I haven't gotten the
2 MR. GOLDFEIN: No, you're not. 2 sense that you've had a lack of context
3 MR. GUDMUNDSON: Because you've 3 throughout this deposition, but, you know,
4 got a protocol here that requires us to 4 look through you need to look through, but I'm
5 give you the documents four days in 5 going to direct your attention to page 13.
6 advance, which we did, under the exact 6 (Document review.)
7 protocol that you required -- 7 A. Yep.
8 MR. GOLDFEIN: Counsel, you had a 8 Q. The date on this is March 9, 2009.
9 choice -- 9 At the top it says: "While fighting rose
10 MR. GUDMUNDSON: Don't interrupt 10 dramatically in the 19" -- or I'm sorry.
11 me. He had the ability -- 11 "While fighting rose dramatically in the '70s
12 MR. GOLDFEIN: Don't interrupt 12 it still was not nearly as prevalent as in
13 you? 13 today's game."
14 MR. GUDMUNDSON: Don't interrupt 14 Did I read that correctly?
15 me I said. Thank you. 15 A. Yep.
16 He has said that he met for two 16 Q. So fighting was much more
17 days and looked at hundreds of 17 prevalent as of 2009 as it was in the 1970s;
18 documents -- 18 was that your understanding?
19 MR. GOLDFEIN: Yes, he did. 19 MR. GOLDFEIN: Objection to form
20 MR. GUDMUNDSON: -- with his 20 of the question.
21 counsel. 21 A. You should produce the list of
22 MR. GOLDFEIN: He can take the 22 fighting majors by year. I mean, that's --
23 time to look at the document. 23 it's easy to check.
24 MR. GUDMUNDSON: My position 24 Q. Well, I believe you testified
25 stands. If we're going to go through 25 earlier that fighting has gone down to a very

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1 low level and a level that was acceptable to 1 A. It's hard to make money if the
2 you and the other GMs. 2 League's at 80 percent of capacity. But...
3 MR. GOLDFEIN: Object to the form 3 Q. Okay. So that would be low in
4 of the question. Mischaracterizes his 4 your view.
5 testimony. 5 A. Yeah.
6 A. I said to you, which is factual, 6 Q. Okay.
7 it's half of what it was six years ago. 7 A. And 7.5 goals per game was a no
8 Q. Okay. Well, that was I guess -- 8 goalie era. Lots of fights.
9 six years ago was right about this time, 9 Q. Okay. And the attendance was
10 wasn't it? 10 lower.
11 A. Yeah. 11 A. Yeah.
12 Q. So I guess that was what you were 12 Q. Could you turn to page 31, please.
13 talking about, that it's gone down since this 13 A. Sorry. Thirty-one.
14 time? 14 Q. Yes. Thirty-one. Lower
15 A. Yeah. 15 right-hand corner.
16 Q. If you turn to the next page, page 16 A. (Witness complies.)
17 14, it says The 1980's - "Golden Era of 17 Q. Okay. This is a slide titled
18 Fighting." 18 Cause and Effect of Major Changes in Fighting.
19 The first bullet point reads: 19 The first entry --
20 "The 1980's were the most fight-filled period 20 MR. GOLDFEIN: Of major rule
21 in League history averaging about one fight 21 changes in fighting.
22 for every game played." 22 MR. GUDMUNDSON: I'm sorry.
23 MR. GOLDFEIN: I'm sorry. What 23 That's good. Thank you.
24 page are we on? 24 Q. Cause and Effect of Major Rule
25 MR. GUDMUNDSON: Fourteen. The 25 Changes in Fighting.
Page 267 Page 269

1 very next page. The numbers I refer to 1 It reads: "1971-72 - Third Man
2 will always be the slide numbers in the 2 in. Rule change: A game misconduct imposed
3 lower right corner. 3 on a player who intervenes in a fight already
4 BY MR. GUDMUNDSON: 4 in progress. Result: Eliminated what had
5 Q. The second bullet point reads: 5 been a growing trend over the previous three
6 1980's also featured: 7.5 goals-per-game; 6 years of two-on-one fights."
7 most lopsided games in League history and an 7 Did I read that correctly?
8 average attendance of 13,000 per game." And 8 MR. GOLDFEIN: Objection to the
9 then somebody wrote in handwriting "80 percent 9 form of the question.
10 of capacity." 10 A. Yes.
11 Did I read that all correctly? 11 Q. Do you remember this era, 19 --
12 A. Yes. 12 A. Yeah.
13 Q. Do you know whose handwriting it 13 Q. The two-on-one fighting?
14 is? 14 A. Yes.
15 A. No. 15 Q. The rule change completely stopped
16 Q. Is it yours? 16 that?
17 A. Is it mine? 17 A. Yeah.
18 Q. Yeah. 18 Q. And up in the right-hand corner --
19 A. No. 19 A. Not completely. We still get the
20 MR. GOLDFEIN: Object to the form 20 penalties. We still get game misconducts.
21 of the question. Most to strike the 21 But it's an ejection.
22 prior answers. And questions. 22 Q. Has it been reduced dramatically?
23 Q. Okay. Is 80 percent capacity, 23 A. Yep.
24 attendance 13,000 per game, is that a lot or 24 Q. If you look up in the corner it
25 little in your view? Or neither? 25 says: "GMs ten major changes in 40 years.

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1 Have had an effect on aspects of fighting plus 1 players have been suspended since for coming
2 minus." 2 off the bench, rule had desired effect with
3 Do you see that? 3 bench-clearing brawls being eliminated from
4 A. Yeah. 4 the game."
5 Q. Do you know what's that meant by 5 Did I read that correctly?
6 that? 6 A. Yes.
7 A. No. 7 Q. Is that is that your understanding
8 Q. Do you know what the ten major 8 that this rule --
9 changes in 40 years means? 9 MR. GOLDFEIN: Object to the form
10 A. No. I assume these are some of 10 of the question.
11 them. 11 Q. Is that your understanding, that
12 Q. Yeah. We don't need to add them 12 this rule eliminated bench-clearing brawls
13 all up. I'm just wondering if that was 13 from the game?
14 something that was known to GMs. 14 A. It's a big fine to the team, too,
15 If you go to page 32 here, which I 15 and I don't there's been a bench-clearing
16 guess would be the right next page. 16 brawl since this rule change, but players
17 MR. GOLDFEIN: Thirty-two. 17 continue to leave the bench to fight.
18 MR. GUDMUNDSON: Yeah. Page 32 on 18 Q. What is the penalty for them doing
19 the bottom right-hand corner. 19 that?
20 MR. GOLDFEIN: Got it. 20 A. Ten games.
21 MR. GUDMUNDSON: You there? Okay. 21 Q. Were any of those ten-game
22 Q. The title of this one also says 22 penalties assessed last year? Last season I
23 Cause and Effect of Major Rule Changes in 23 should say.
24 Fighting. I'm going to focus you below -- 24 A. I don't know. Certainly if not
25 well, let's look at the top. 25 last year, the year before.
Page 271 Page 273

1 "1986-87 - Instigator Minor 1 Q. But it's been dramatically
2 Penalty. Change: Instigator assessed an 2 reduced, correct?
3 extra minor penalty. Result: Instigator 3 A. Yes.
4 called in 30 percent of fights over ensuing 4 MR. GOLDFEIN: Object to the form
5 six years. (Two most fight-filled years in 5 of the question.
6 League history were in first two years of 6 Q. Page 36, if you would, please.
7 instigator.)" 7 This one -- are you with me?
8 What does that mean to you, if 8 A. Yeah.
9 anything? 9 Q. Cause and Effect of Major Rule
10 MR. GOLDFEIN: Object to the form 10 Changes in Fighting it reads at the top of
11 of the question. 11 this.
12 A. I wouldn't know how to explain 12 And then it reads below that Other
13 that. Instigator was called in 30 -- it's 13 Initiatives on Fighting. And then it reads:
14 only assessed in roughly that number now I 14 "League has eliminated unseemly aspects of the
15 think. 20 to 30 percent. 15 fighting."
16 Q. Okay. 16 And then a bullet point: "Off-ice
17 A. This is, like he said, the 17 altercations with fans."
18 golden -- whoever wrote this -- the golden age 18 Below that it reads "Eye-gouging."
19 of fighting. So... 19 Below that it reads "Head butting." And below
20 Q. Okay. All right. I'm going to 20 that it reads "Sucker punches."
21 ask you about one more just below that. 21 Did I read that correctly?
22 It reads: "1987-88 - Leaving 22 MR. GOLDFEIN: Did you
23 Bench to Fight. Ten-game suspension to first 23 intentionally choose not to read the
24 player to leave the bench. Five-game 24 handwritten comment there?
25 suspension to coach. Result: While 20 25 MR. GUDMUNDSON: Oh, I -- yeah, I

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1 was going to go back to it. 1 A. (Witness complies.)
2 Q. And Mr. Goldfein makes a good 2 Q. At the top of that page it reads
3 point, of course. We would come back to it. 3 Fighting in the Playoffs. Did I read that
4 There is a line just below "League has 4 correctly?
5 eliminated unseemly aspects of fighting." It 5 A. Yeah.
6 reads "With supplemental discipline." 6 Q. First of all, let me ask you this.
7 Did I read that correctly? 7 Do fighting penalties go down in
8 A. Yes. 8 the playoffs compared to the regular season?
10 of the question. 10 Q. Why is that?
11 Q. Is it your understanding that 11 A. Because the teams fight less.
12 supplemental discipline or another rule 12 Q. Why do they fight less?
13 eliminated these aspects, unseemly aspects of 13 A. They don't all. Like, my team
14 fighting? 14 didn't when we won the Cup. But most teams --
15 MR. GOLDFEIN: I'll object to the 15 the teams that make it to the playoffs tend to
16 form of the question. I think it's 16 focus on skill. The 16 best teams that make
17 unintelligible. Maybe you want to 17 it tend to focus on skill more than these
18 repeat it. 18 other things. And the stakes are pretty high.
19 MR. GUDMUNDSON: Do not make those 19 If you get in a fight in the playoffs and take
20 types of speaking objections, please, 20 an instigator penalty it could cost your team
21 Counselor, on the record. 21 a game. The stakes are much higher. But
22 MR. GOLDFEIN: That's a ground for 22 there's still fighting in the playoffs.
23 an objection as to form. I'm sorry. 23 Q. Okay. But it's dramatically
24 MR. GUDMUNDSON: Saying that it's 24 reduced? Would you agree with that?
25 unintelligible on the record? 25 MR. GOLDFEIN: Object to the form
Page 275 Page 277

1 MR. GOLDFEIN: Yes, it is. 1 of the question.
2 MR. GUDMUNDSON: That is not 2 A. It's reduced, yeah.
3 allowed under this deposition protocol. 3 Q. Okay. Page 38, again, the title
4 MR. GOLDFEIN: Yes, it is. 4 of this is Fighting in the Playoffs.
5 MR. GUDMUNDSON: No, it isn't. 5 And just below that it reads:
6 MR. GOLDFEIN: It's an objection 6 "Since 1990-91 season. Team that led the
7 to form under the Federal Rules of 7 League in regular season fighting majors
8 Evidence. 8 missed playoffs ten times, lost in first round
9 MR. GUDMUNDSON: Then you make a 9 six times, won the Stanley Cup once."
10 form objection. 10 Did I read that correctly?
11 MR. GOLDFEIN: Would you read the 11 A. Yes.
12 question back, please. 12 Q. And the date on this is 2009 so
13 (Record read.) 13 this would have been --
14 MR. GOLDFEIN: Object to the form 14 A. Yes. The Stanley Cup team was my
15 of the question. 15 team.
16 A. Well, we're going to have off-ice 16 Q. Okay. Below that it reads: "The
17 altercations with fans. We haven't had one 17 team with at least regular season fighting
18 recently. Eye gouging, I don't think there's 18 majors missed playoffs one time, lost in first
19 been one the last couple of years. Sucker 19 round five times, lost in second round four
20 punches, they've had a couple of those in the 20 times, lost in third round two times, lost in
21 last couple years. 21 the final one time, won the Stanley Cup four
22 These are -- you're talking about 22 times."
23 dramatically reducing incidents like this with 23 Did I read that correctly?
24 supplemental discipline, yes, it has. 24 A. Yes.
25 Q. Would you turn to page 38, please. 25 Q. So if my math is correct of all

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1 the teams that League in regular season 1 and they'll have time to --
2 fighting only seven were playoff teams whereas 2 A. I think we're getting it right --
3 16 playoff teams had the least fighting 3 MR. GOLDFEIN: Object to the form
4 majors. 4 of the question, if it is a question.
5 You can analyze this yourself or 5 A. I think we're getting it right
6 do the math however you want, but I think it 6 now.
7 confirms what you testified to just a few 7 Q. Sorry?
8 seconds ago which is teams that go deep in the 8 A. I think we're getting it right
9 playoffs don't focus on physicality and 9 now. I don't think the players can get away
10 fighting as much they do on skill play? 10 with that now. I said I think it was
11 A. Correct. But you also -- in a cap 11 underreported before. I think we're getting
12 system you've had many dynasties, too. For 12 it right now.
13 example, you know, Detroit won a couple Cups. 13 Q. Okay. So you don't think that
14 They're a pure skill team. They had a good 14 injuries sustained in fighting including
15 team. They're in the hunt. Pittsburgh. So 15 concussions are underreported now because
16 you can say Chicago, for example, they've won 16 you're getting it right now?
17 three Cups. 17 A. I believe so, yeah.
18 But -- it's hard to generalize, 18 Q. Okay. Just a couple more. If you
19 but, yes. In general it's true. 19 turn to page 61, please.
20 Q. The one lone exception, of course, 20 This is the slide called in reign
21 on this document is your Stanley Cup winning 21 or at least it says In-Arena at the top.
22 team, correct? 22 First bullet point reads: "There
23 A. Correct. Stanley Cup or 23 is apparent marketing and or additional
24 conference finals the year before, too. 24 multimedia in more than 5 percent of the
25 Q. Do you know why that is, why you 25 fights in our game. Examples In-Arena.
Page 279 Page 281

1 were the only team to win the Stanley Cup? 1 Boxing bells are rung before the first punch
2 A. Because I'm good at what I do. 2 is thrown. Drum/symbols sounds every time the
3 Q. Because you're the -- okay. 3 home player lands a punch. Typical songs -
4 Could you turn quickly to 58. 4 Bloody Sunday (U2), We Salute You (AC/DC),
5 This is a slide that says Injuries at the top. 5 Raise A Little Hell (Trooper), Eye of the
6 First bullet point reads: "In 500 6 Tiger (Survivor), Fight For Your Right
7 fights in 2008-09 (through February 7), 19 7 (Beastie Boys)."
8 players had been injured and missed a total of 8 Below that it reads: "Fights
9 230 games." 9 generate crowd noise and enthusiasm -
10 And I'll read the handwriting 10 additional multimedia in arena including
11 write below that. "Not precise - probably 11 replay prolongs that spike."
12 higher." 12 Did I read all that correctly?
13 Did I read that correctly? 13 A. Yes.
14 A. Yeah. 14 MR. GOLDFEIN: Object to the form
15 Q. Do you know what that means, "Not 15 of the question. Move to strike.
16 precise - probably higher"? 16 Q. Are clubs allowed to promote
17 A. No. I don't know if it means the 17 fighting in this way today in hockey?
18 number of players injured is wrong and could 18 A. You know what? I'd have to check
19 be higher or the number of man games lost 19 the rules. Certainly I would vote against
20 could be higher. I don't know. 20 anything like this. And I've never heard of a
21 Q. Okay. Are injuries sustained in 21 drum or symbol sounding every time the home
22 fighting imprecise for the reasons we stated 22 player lands a punch. I don't doubt that this
23 earlier? I believe you testified that guys go 23 is true. Or the songs or anything. I don't
24 to the bench or go to the penalty box or 24 think we do any of that and if we do I'll make
25 they'll go to the locker room after the break 25 sure we stop it.

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1 Q. Did they ever do any of this when 1 outdated. This stuff did happen in the '90s.
2 you were with the Maple Leafs? 2 I don't think it does anymore.
3 A. I would say not a chance. But -- 3 Q. Do you approve of this kind of
4 Q. You say that because you were the 4 thing?
5 boss and you wouldn't approve of this? 5 A. No, I don't.
6 A. Yes. But I'm not -- I'd never say 6 Q. Okay. And the last couple of
7 it didn't happen. I'm not at every game and 7 pages there's a number of quotes. I could
8 who knows. But, no. 8 read them all but I'm not going to. I'll pick
9 Q. What about the Canucks? Same? 9 one but feel free the read them all yourself.
10 A. I'd say no. Never. 10 You can go to page 63. Or let's go to Sean
11 Q. Whalers same? 11 Thornton at the top. It reads -- the very top
12 A. I never even fought in Hartford. 12 the title of the slide is The Role of a
13 Well, I did. I don't think we did any of this 13 Fighter - In Players' Words. "Sean Thornton
14 stuff. This is embarrassing to read. I don't 14 (on a fight early in the season with Steve
15 think we did any of this. 15 Begin as retaliation for a Begin hit on Savard
16 Q. If you turn to the next page on 62 16 last March): 'I had to get it out of the way.
17 there's a slide called TV/Marketing. And it 17 I would have been thinking bit all night if I
18 reads: "Examples TV/Marketing." 18 didn't get it out of the way on the first
19 Bullet point 1 reads: "'Tale of 19 shift. That's why I skated over toward where
20 the Tape' -- highlights the two fighters." 20 he was standing. He was more than willing to
21 Bullet 2 is the "'Cam cam' -- 21 oblige. He did his job, I did mine, and we
22 camera following Janssen around in his quest 22 just played after that.'"
23 for a fight." 23 Did I read the correctly?
24 The next bullet point reads: 24 MR. GOLDFEIN: Object to the form
25 "Sponsored replays. Fox Sports' slow motion 25 of the question.
Page 283 Page 285

1 replay camera. 'Bringing the Heat' sponsored 1 A. Yes.
2 by Texas Pete. 'Ford Tough' moment of the 2 Q. Do you know who picked the quotes
3 game." 3 that were put in here?
4 Below that there's a bullet point 4 A. No.
5 that reads "Broadcasters Commentary. Knowing 5 Q. I don't -- on the very last page
6 the history or background to the fight (ie. 6 on 65 it reads: "Derek Dorset (on where he
7 Rivalry, retribution for previous acts, 7 learned his craft)."
8 previous matchup)." 8 The heading of this slide again is
9 Did I read that correctly? 9 The Role of a Fighter - In Player's Words.
10 A. Yep. 10 This slide reads: "Derek Dorset (on where he
11 MR. GOLDFEIN: Object to the form 11 learned his craft): 'My mom and my grandma,
12 of the question. Move to strike. 12 they don't close their eyes or anything when
13 Q. Are you aware of any rules in the 13 I'm fighting, no. Nobody believes it, but
14 broadcasting contracts or otherwise with the 14 they bob and weave and they're going through
15 broadcasters that prohibit this type of thing? 15 the fight with me."
16 MR. GOLDFEIN: Object to the form 16 Did I read that correctly?
17 of the question. 17 A. Yes.
18 A. I don't know -- I have to say my 18 MR. GOLDFEIN: Object to the form
19 reaction to this -- looking at this is this 19 of the question.
20 has got to be ten year old and I know it's 20 Q. Okay. I don't -- and, again, I
21 not. This type of stuff has got to be from 21 don't want to read all these, but I didn't
22 the '90s. I haven't seen it in -- the Ford 22 find any quotes in here that were antagonistic
23 Tough moment, I know a couple teams have it. 23 to the existence of fighting in the game. And
24 It's usually a body check. It's not a fight. 24 I believe you testified you don't know who
25 So I don't know -- this strikes me as 25 picked these quotes, correct?

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1 A. Correct. 1 more on a given night or maybe or maybe Joey
2 Q. Do you know who made this 2 Crabb."
3 presentation? 3 Did I read that correctly?
4 A. No. 4 A. Correct.
5 MR. GOLDFEIN: Object to the form 5 MR. GOLDFEIN: Object to the form
6 of the question and the speech of your 6 of the question.
7 personal analysis of the document. Move 7 Q. What did you mean by that?
8 to strike. 8 MR. GOLDFEIN: Object to the form
9 MR. GUDMUNDSON: Are you guys 9 of the question.
10 ready for a break? 10 MR. GUDMUNDSON: I'm not talking
11 MR. GOLDFEIN: Whenever you're 11 to you, Mr. Goldfein. I was talking to
12 ready. 12 the witness.
13 THE VIDEOGRAPHER: The time is 13 MR. GOLDFEIN: I know you are.
14 3:07. We're going off the record. 14 I'm objecting to the form of the
15 (Recess taken.) 15 question.
16 (Burke Exhibit 19, e-mail dated 16 MR. GUDMUNDSON: Okay.
17 1/6/2012 bearing production numbers 17 A. What is the question? I'm sorry.
18 NHL0094230 through NHL0094232, marked 18 Q. Maybe he wants to object again.
19 for identification as of this date.) 19 We should give him some time.
20 THE VIDEOGRAPHER: The time is 20 MR. GOLDFEIN: I just did. You
21 3:26. We're back on the record. 21 asked him what he meant by it, right?
22 BY MR. GUDMUNDSON: 22 MR. GUDMUNDSON: Okay.
23 Q. Welcome, Mr. Burke. We just took 23 MR. GOLDFEIN: I objected to the
24 another short break and we're back on the 24 form of the sentence. It assumes that
25 record and the court reporter has handed you 25 he said it.
Page 287 Page 289

1 Exhibit 19. NHL 0094230 on the first page. 1 Q. What did you mean -- first of all,
2 The last page is Bates numbered NHL 0094232. 2 what did you mean?
3 First of all, this is a news 3 A. It's Rose DiManno. She's pretty
4 article called GM mourns demise of NHL 4 good. And I would say chances are it's an
5 enforcers. And then some e-mails -- and then 5 accurate quote.
6 some e-mails responding to it. At the time 6 Q. You say Rose DiManno. She's the
7 that Colton Orr was released from Toronto 7 author of this article.
8 Maple Leafs. Do you remember this incident? 8 A. Yep.
9 A. Yep. 9 Q. You say she's pretty good?
10 Q. And I shouldn't say incident. Do 10 A. She's a really good reporter.
11 you remember this event I should say. 11 Q. Is she? What makes you say that
12 A. Yep. 12 versus other reporters?
13 Q. And you made some quotes in the 13 A. She's honest. She's fearless.
14 press about it; is that right? 14 She gets it right. So I would say she would
15 A. Yes. 15 have quoted me accurately.
16 Q. Okay. If you can go to the second 16 Q. Okay. What did you mean by if
17 page, third full paragraph down where it says 17 there's no dance partner for Colton Orr then
18 "You go into..." 18 it's pretty hard to not say that Darryl Boyce
19 A. Yes. 19 gives us more on a given night?
20 Q. It reads -- this is a quote from 20 A. That if Colton Orr doesn't get an
21 you according to the article. "You go into 21 opportunity to fight, that he's not a good
22 this game with the roster that gives you the 22 enough player to be effective. You could play
23 best chance to win. And if there's no the 23 a little bit. He's actually a decent player.
24 dance partner for Colton Orr then it's pretty 24 But you could put a player in that maybe gives
25 hard to not say that Darryl Boyce gives us 25 you better foot speed or better skill. That's

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1 what I meant. 1 Q. Okay. And you're testifying that
2 Q. And is that what happened? 2 you're not aware that Colton Orr suffered any
3 A. Yeah. 3 concussions that were not recorded?
4 Q. Who did you put in in his place in 4 A. Exactly.
5 the roster spot? 5 Q. Okay. If somebody at the League
6 A. I have no idea who the coaches 6 office knew or somebody else anywhere
7 dressed that night. But one of those two guys 7 suspected that Colton Orr had a concussion
8 probably. 8 would you expect them to inform you?
9 Q. Okay. One of two guys. Either -- 9 A. If it's something I was aware of
10 A. Darryl Boyce or Joey Crabb. 10 they wouldn't have had to inform me. But,
11 Q. Were they both better skill 11 yes, the League, as I said to you before, they
12 players than Colton Orr? 12 will call you if they think a player has had a
13 A. Yes. 13 concussion and not been treated properly.
14 Q. If you look at the first the 14 Q. Is Colton Orr known as a fighter?
15 e-mail in the middle of the page I guess or 15 A. Yes.
16 near the middle, it's from Colin Campbell to a 16 Q. How many fighting majors did Bank
17 number of people including Gary Meagher, Gary 17 he get in a year?
18 Bettman, Bill Daly, John Collins, Brendan 18 A. I don't know.
19 Shanahan. Do you see that? 19 Q. On average?
20 A. Um-hum. 20 A. No idea.
21 Q. Colin Campbell writes: "Burkie 21 Q. No idea?
22 missing point." 22 But he's one of the guys who
23 First of all, are you Burkie? 23 fought on the team.
24 A. Yes. 24 A. He's a heavyweight, yeah.
25 Q. "Burkie missing point. Colton Orr 25 Q. Yeah, heavyweight.
Page 291 Page 293

1 either knocks out opponent or gets knocked 1 Okay. If you look at the top
2 out. We figure he has had at least three 2 e-mail, this is an e-mail from Gary Bettman to
3 concussions in the last year (even though NONE 3 Colin Campbell in response where he writes:
4 are recorded)." And "none" is in all capital 4 "We haven't changed the rules on fighting.
5 lesser. "Also, at 1 million this year and 1 5 What Brendan is doing has nothing to do with
6 million next where we're WAY TOO expensive for 6 fighting. Hitting is only slightly down. And
7 teams." And "way too" is in all caps. "And 7 those other hits we don't want. Half the
8 another problem. Don't think he can play. 8 world wants fighting eliminated and the other
9 Slight problem." 9 half wants more. I'd say it's insane. I
10 Did I read that correctly? 10 agree with Colie. Brian was looking for an
11 A. Yeah. 11 excuse/distraction with respect to getting rid
12 MR. GOLDFEIN: Object to the form 12 of Orr."
13 of the question. 13 Did I read that correctly?
14 Q. What did he mean by "We figure he 14 A. Yes.
15 has had at least three concussions in the last 15 MR. GOLDFEIN: Objection to the
16 year even though none are recorded"? 16 form of the question. Move to strike.
17 A. I have no idea what he means by 17 Q. Do you know what Gary Bettman was
18 that. I don't think Colton Orr had a 18 talking about here with respect to what
19 concussion when he played for me. 19 Brendan is doing?
20 Q. Okay. Did Colin Campbell or 20 MR. GOLDFEIN: Object to the form
21 anybody else ever ask you about Colton or his 21 of the question.
22 concussions? 22 A. I think Gary read it quickly is my
23 A. No. 23 guess. I think he thinks that I'm insulting
24 MR. GOLDFEIN: Object to the form 24 Brendan.
25 of the question. 25 Q. Okay.

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1 A. Somehow saying this is Brendan's 1 that one.
2 fault. And I'm not. I'm saying Brendan 2 (Burke Exhibit 20, e-mail dated
3 Shanahan is having six hearings every two days 3 10/31/2013 bearing production numbers
4 because of the rats. And I think Gary read 4 NHL0108424 through NHL0108428, marked
5 this that I was attacking Brendan, which I 5 for identification as of this date.)
6 wasn't. I was just saying he's busy because 6 BY MR. GUDMUNDSON:
7 we don't have fighting. 7 Q. Mr. Burke, the court reporter has
8 Q. And that if you had fighting you 8 handed you what's been marked as Exhibit 20.
9 would have less rats incidents as you call 9 It's a document produced by the NHL in this
10 them? 10 litigation bearing the Bates number -- first
11 A. Yeah. 11 page bearing the Bates number NHL0108424 and
12 Q. Okay. And now I'm going to ask 12 last page bearing the Bates number NHL
13 you about that. What is a rat? Because 13 0108428.
14 obviously we both read several of your 14 I'm going to direct your attention
15 documents where you use that term. But I want 15 to the third page of this -- well, I guess it
16 to make sure I'm understanding what you mean 16 would be the very bottom of page 2 where it
17 by rats. 17 says "In support of fighting."
18 And, again, I know you'll correct 18 Do you see that?
19 met if I misstate what you think or your 19 A. Yeah.
20 testimony. But I believe your testimony has 20 Q. On the next page there's an
21 been that you want fighting in the game in 21 article. It looks like to be an op ed or some
22 order to control against what you call players 22 article that you read for the USA Today
23 who are termed rats playing in a violent way 23 October 30, 2013. Is that correct?
24 without any recourse having to fight later on? 24 A. That's the date, yeah.
25 A. Not just -- 25 Q. Okay. Did you write this article?
Page 295 Page 297

1 MR. GOLDFEIN: Object to the form 1 A. Yeah.
2 of the question. 2 Q. You recall writing it. Did you
3 A. Not just rats. All players. I 3 have any ghost authors or was it your pen?
4 think when there's no fear of retribution even 4 A. I don't use ghost authors.
5 non-rats gets brave. But a rat is a player 5 Q. Okay. So you wrote this.
6 that starts up, uses his stick, comes in late 6 Going down to the second paragraph
7 to piles and hits people. Yaps a lot and 7 here it reads: "But I love this game and I
8 won't back it up. Won't fight. 8 played this game professional. I respect its
9 Q. Okay. Can't that activity be 9 fabric, its history, and its unique stance on
10 penalized out of the game? 10 fighting. Some people will never get any one
11 A. Yes. That's the theory. And my 11 of those three."
12 experience has been leagues with no fighting, 12 Did I read that correctly?
13 they've had trouble legislating this other 13 A. "Just will never get any of those
14 behavior out as I said to Bill Beagan. 14 three. "
15 Q. Okay. So if a player who I guess 15 Q. Okay. "Some people will just
16 you would consider a rat, is piling on late, 16 never get any of those three."
17 using his stick in a way that he shouldn't be 17 Now did I read it correctly?
18 doing, and other stuff that you just 18 A. Yes.
19 mentioned, there are penalties against that 19 MR. GOLDFEIN: Object to the form
20 kind of thing, are there not? 20 of the question.
21 A. Yes. 21 Q. So when you're talking about this
22 MR. GOLDFEIN: Object to the 22 context and you say you played the game
23 form -- object to the form of the 23 professional, was that your time in the AHL?
24 question. 24 A. Yes.
25 Q. All right. That's all I have on 25 Q. Okay. On this next paragraph

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1 reads: "So let's begin with a few premises. 1 Q. Okay. Not on any specific rules
2 First the role and amount of fighting in 2 or anything, correct?
3 hockey has been systematically reduced over 3 A. Correct.
4 the last 20 years. That's a good thing." 4 MR. GOLDFEIN: Object to the form
5 So 20 years prior to this would be 5 of the question.
6 1993, correct? 6 Q. And then you write -- continue on:
7 A. Yes. 7 "That's also a good thing. The people in
8 Q. But the document we saw earlier 8 hockey who think fighting is an integral part
9 said that there was more fighting in 2009 than 9 of the game also are convinced that we don't
10 even in the '70s; is that correct? 10 need more fighting."
11 A. Yeah. It said that -- 11 Is that correct?
13 of the question. 13 Q. Do you still have rats in the game
14 A. It said the '90s was the golden 14 today?
15 age of fighting. Forty percent more fighting 15 A. Yes.
16 than in this era. 16 Q. Wouldn't you need more fighting
17 Q. Well, I think it said the '80s 17 then to control their behavior?
18 were the golden age of fighting. We don't 18 A. The issue with the rats is more
19 need to quibble about it, but I'm just curious 19 the instigator penalty than the heavyweights.
20 where you got your data on this. 20 The rats won't fight heavyweights. So the
21 A. Well, I think -- let's pull up the 21 game has evolved. I think you're ignoring the
22 other document. 22 change that came in '05/06 when we changed all
23 Q. Sure. It's Exhibit 18 and it's 23 the rules. And that's made it harder for the
24 page 14. 24 big tough players to play. So it's an
25 A. Okay. 25 evolution of the game and the rules catching
Page 299 Page 301

1 '80s, okay. '80s golden age. So 1 up with that. So fighting has been reduced by
2 I'm off by a year here. We have reduced the 2 a series of rule changes but also by the
3 amount of fighting. I think it said here -- 3 evolution of the game. I think there's no
4 it said 40 percent more fighting in the '80s 4 chance fighting comes back up.
5 than in the 2000s. So from that era we've 5 Q. What rule in '05/06 are you
6 reduced the amount of fighting dramatically. 6 referring to there?
7 Q. Okay. So you say that's a good 7 A. No, I'm talking about the systemic
8 thing. Plus there's no chance that the role 8 attack on fighting. Third man in. Instigator
9 or amount of fighting will increase other than 9 penalty. Sweaters tied down. Helmets on in
10 a spike here and there. 10 fights. Anti-brawling legislation.
11 Did I read that correctly? 11 Cumulative instigator penalties.
12 A. Yes. 12 So there's been a series of rule
13 Q. What did you mean by that? How 13 changes that diminish the ability of teams to
14 did you know that there would be no chance the 14 use fighting as a tactic.
15 role or amount of fighting would increase? 15 Q. And you believe that all those
16 A. Because of the way the game is 16 things are going to prevent the number of
17 going and the heavyweights going and the rule 17 fights from going up going forward?
18 changes that we made. I don't think there's 18 A. Yeah. Yeah.
19 any chance it's going to go up. 19 Q. Okay.
20 Q. But that's your personal belief, 20 A. And the game itself. The
21 correct? 21 evolution of the game itself.
22 A. Yeah. 22 Q. And what do you mean by that?
23 Q. Okay. Just based on your 23 A. Since '04/05. We changed all the
24 observations? 24 rules. There's way more emphasis now on speed
25 A. Yeah. 25 and skill.

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1 Q. Is that a good thing in your view? 1 You know, the quality of life afterwards and
2 A. Yeah. 2 so one. At least one of the videos addresses
3 Q. Even if it phases out the 3 that issue. The players -- it's a small
4 physicality of the game? 4 community. They're aware of Keith Primeau
5 A. No. The hits are up. 5 donating his brain. They would read about --
6 Q. Okay. 6 players know the atmosphere that we're playing
7 A. The hits are up in the new system. 7 in now.
8 Q. It's faster and there's more 8 Q. Okay. But your position and Gary
9 hitting? 9 Bettman's public position is that there is no
10 A. There's more hitting. There's 10 science or connection between repeated hits to
11 less fighting. 11 the head and long-term neurological issues.
12 Q. How has the incidence of 12 A. That's the medical community's
13 concussions changed during that period, do you 13 view.
14 know? 14 Q. Well, it's Gary Bettman's view and
15 A. I don't. 15 it's your view in this deposition. I'm not to
16 Q. Okay. 16 quibbling.
17 Okay. The next paragraph reads: 17 MR. GUDMUNDSON: I am in the
18 "Second, a guy like me who supports fighting 18 middle of a sentence.
19 is not saying to ignore the medical 19 MR. GOLDFEIN: You're arguing with
20 consequences. I care deeply about my players. 20 the witness.
21 They deserve state-of-the-art diagnostics, 21 Q. And is a player supposed to
22 treatment and full disclosure of medical 22 believe that, that there's no connection? Or
23 risks." 23 are they supposed to believe Keith Primeau who
24 Did I read that correctly? 24 donates his brain? What is the message
25 A. Yeah. 25 they're supposed to believe?
Page 303 Page 305

1 Q. Then you continue on: "The NHL 1 MR. GOLDFEIN: Objection to the
2 has been a leader in this area in pro sports 2 form of the question. Compound.
3 and should be applauded for it. But a player 3 Argumentative. And a narrative speech.
4 informed of risks should be permitted to 4 MR. GUDMUNDSON: We're holding
5 assume them." 5 this deposition open to account for Mr.
6 Did I read that correctly? 6 Shep Goldfein's speaking objections.
7 A. Yes. 7 Q. You can answer.
8 Q. Do you believe that players have 8 MR. GOLDFEIN: You can answer.
9 been fully informed of all the risks of 9 A. Oh. My information is the medical
10 fighting? 10 community has said clearly there is no link.
11 A. I believe the players have been 11 Q. Okay. And my question is what are
12 fully informed of the risks of fighting with 12 the players playing today's game supposed to
13 the science we have available, yes. 13 believe? I believe it's your testimony they
14 Q. Okay. So they have not been 14 have not been warned about the connection
15 informed, to your knowledge, that there may be 15 between -- or any connection between repeated
16 a risk of long-term neurological issues like 16 hits to the head and long-term neurological
17 CTE or dementia because of repeated blows to 17 issues because there's not science to support
18 the head, right? 18 that; is that correct?
19 MR. GOLDFEIN: Object to the form 19 MR. GOLDFEIN: Objection.
20 of the question. 20 A. Not to support a link to CTE or
21 A. I don't think there's the science 21 Alzheimer's.
22 to support a warning against CTE. 22 Q. What about dementia?
23 Q. Okay. 23 A. Not to my knowledge that there's a
24 A. And as far as long-term effects, 24 link. They were informed quality of life
25 at least one of the videos talks about that. 25 afterwards.

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1 Q. What are they supposed to think 1 Q. It says: "The NHL has three
2 that means? What is a player supposed to 2 levels to protect its players. The third
3 think that means? 3 level is the Player Safety department that
4 MR. GOLDFEIN: Object to the form 4 punishes players who cross the line. They are
5 of the question. 5 essential. The last line of player
6 A. When I talk about the risks here 6 protection. The second is the officiating
7 I'm talking about the risks of playing the 7 department, the absolute best in the world.
8 game, the risks of injury. As far as our duty 8 But the first level on every pond and outdoor
9 to warn players, I think we have clearly 9 ring in North America is peer accountability.
10 warned players of the risks of playing the 10 Did I read that correctly?
11 game. I don't think we've taken it to the 11 A. Yep.
12 point where you want it to go because the 12 Q. What do you mean by "peer
13 medical community doesn't support that. If 13 accountability" here?
14 and when the medical community supports that 14 A. Peer accountability.
15 and the science supports that, then it's time 15 Accountability to your peers. The other
16 to ask me the question. But until it does, I 16 players.
17 don't see that that's something the League 17 Q. Is that fighting?
18 should do and any information like that would 18 A. Yes.
19 come from the NHLPA anyway. 19 Q. Because I believe Colin Campbell
20 Q. Are you stating that as a fact or 20 in his e-mail said he didn't experience that
21 is that your -- 21 kind of thing when he was playing on the pond.
22 A. Stating what as a fact? 22 A. I couldn't tell you what Colin
23 Q. That that information would come 23 Campbell experienced growing up. I can tell
24 from the NHLPA? 24 you when I grew up playing on outdoor rinks
25 A. We can do joint issues -- joint 25 there was plenty of fighting.
Page 307 Page 309

1 releases with the NHLPA. We're not supposed 1 Q. And is that something you condone?
2 to inform their players directly of these 2 A. If a player crosses a line and has
3 things. They are. 3 to fight someone, yes.
4 Q. Okay. So the risks that you're 4 Q. Even at the youngest ages?
5 talking about in this article are the risks of 5 A. This isn't youth hockey. This is
6 playing the game only. 6 pond hockey. A bunch of kids playing outside.
7 A. Yes. 7 Playing with older kids, you behave.
8 Q. Okay. Are you aware that the 8 Q. Okay. I think I understand.
9 National Football League has warned its 9 (Burke Exhibit 21, memorandum
10 players regarding the connection between 10 dated September 19, 1996 bearing
11 repeated hits to the head and long-term 11 production numbers NHL0225277 through
12 neurological issues such as CTE, dementia or 12 NHL0225293, marked for identification as
13 Alzheimer's? 13 of this date.)
14 MR. GOLDFEIN: Object to the form 14 BY MR. GUDMUNDSON:
15 of the question. 15 Q. Mr. Burke, the court reporter has
16 A. No. 16 handed you what's been marked as Exhibit 20.
17 Q. Okay. 17 It was a document that was produced by the NHL
18 Actually, let's stay on that 18 in this litigation, the first page bearing the
19 article at the very end. The last two 19 Bates number NHL0225277 and the last page
20 paragraphs. You write -- this is on the page 20 bearing the Bates number NHL0225293.
21 ending Bates number 427. You write: "The NHL 21 The front page of this has the
22 has three levels..." 22 official National Hockey League letterhead on
23 Did you read that? Can you see 23 it and reads Memorandum to All NHL Head
24 that? 24 Coaches, All NHL Assistant Coaches, All NHL
25 A. Yes. 25 Players.

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1 A. Correct. 1 Q. And so were you conveying your
2 Q. From Brian P. Burke, Senior Vice 2 expectation that there would not be excessive
3 President and Director of Hockey Operations, 3 penalties in the physical aspect of the game?
4 date, September 19, 1996; is that correct? 4 A. Well, this was not my view on
5 A. Correct. 5 life. This is what the League, after
6 Q. I'm going to direct your attention 6 consulting with the GM's, would have said, is,
7 to the first -- 7 Okay, this is what we want. We want to
8 MR. SHAMIE: Counsel, just before 8 preserve the physical aspect of the game. We
9 you -- I think it's Exhibit 21. Not 20. 9 want to call the fouls that are obvious.
10 MR. GUDMUNDSON: Oh, I beg your 10 Q. So you were delivering the
11 pardon. This is Exhibit 21. I misspoke 11 message.
12 earlier. Thank you for the correction. 12 A. Yes.
13 Q. Do you see on the first page where 13 Q. And this is -- okay. In your role
14 there's a bolded heading that says (1) Policy 14 as -- and so you got this directive from the
15 Statements on Officiating? 15 GM's?
16 A. Yeah. 16 A. Yeah.
17 Q. Right below that you write: "A 17 Q. And so the ex -- so this memo was
18 consistent standard of rule enforcement, 18 sent for what reason? To acclimate the
19 during all three periods, which shall reflect 19 players, the coaches and the assistant coaches
20 sound judgment, impartiality and allow an 20 with the real changes and how penalties would
21 entertaining flow of the game, shall be the 21 be called in the upcoming season?
22 objective of every official. To realistically 22 A. Yep.
23 achieve this objective, it is imperative that 23 Q. Okay. And so this statement from
24 the physical aspect of the game shall not be 24 the GMs, as passed through you, really was be
25 excessively penalized." 25 aware that the physical aspect is not going to
Page 311 Page 313

1 Did I read that correctly? 1 be excessively penalized?
2 A. Yes. 2 A. The physical aspect of the game is
3 Q. What did you mean by that? 3 a critical part of what we do and it's not
4 A. By what? By the whole thing? 4 going to be excessively penalized. Clean,
5 Q. Well, let me ask you this question 5 hard body checking is still allowed and
6 a little bit better. 6 encouraged.
7 What was your intention in sending 7 Q. Okay. And it won't be excessively
8 that remark to all the players, all of the 8 penalized, correct?
9 head coaches, and all of the assistant 9 A. Right below it says obvious fouls
10 coaches? 10 shall be called at all times.
11 MR. GOLDFEIN: Object to the form 11 Q. Sure.
12 of the question. 12 Let me ask you this though. Are
13 A. If I'm not mistaken, a memo like 13 penalties monitored -- I'm sorry. Are
14 this would have gone out every year where we 14 penalties monitored and enforced at the League
15 had rule changes. Points of emphasis. 15 level?
16 The year before we had put in -- 16 A. Yes.
17 '95/96 we had put in a new obstruction 17 Q. Through supplemental discipline?
18 standard to call hooking and holding and it 18 A. Penalties monitored?
19 opened up the game nicely. So the policy 19 Q. Yeah. I mean, is there anybody at
20 statement is enforce the rules with sound 20 the League office who keeps track of how many
21 judgment, impartiality and allow an 21 penalty minutes each player has?
22 entertaining flow of the game. To 22 A. Yeah.
23 realistically achieve this objective, it is 23 Q. Who is that?
24 imperative that the physical aspect of the 24 A. Statistician. Whatever -- I don't
25 game shall not be excessively penalized. 25 know if it's Gary Hart's department or

612.338.3376
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1 whomever. 1 whole memo. But they would have had all these
2 Q. Okay. So let me just take it back 2 new rules. If they restructure rules. The
3 to your -- the statement in your memo here. 3 new text that goes with them explaining them.
4 It says the physical accept of the game shall 4 Modified penalties. Video goal judge. The
5 not be excessively penalized. What if it was 5 general manager has to sign that he received
6 excessively penalized in the League's view, 6 it. The officials would receive probably
7 what would happen? 7 either a copy of this memo or something like
8 MR. GOLDFEIN: Object to the form 8 it explaining the rule changes.
9 of the question. 9 Q. And who supervise the officials?
10 A. I don't understand what you're 10 There's the Director of Officiating, correct?
11 getting at. Most your questions I understood 11 A. Yeah. At this point it would have
12 what you were getting at. Now I don't. So 12 still been Bryan Lewis I think in 1996.
13 what -- 13 Q. Okay. And I believe you testified
14 Q. It's probably my fault. In fact, 14 that your role at that time was to supervise
15 I know it's my fault then. 15 him.
16 This says that it is imperative 16 A. Yep.
17 that the physical aspect of the game shall not 17 Q. Okay.
18 be excessively penalized, correct? 18 (Burke Exhibit 22, e-mail dated
19 A. Right. 19 8/12/2014 bearing production number
20 Q. What happens if the referees 20 NHL0201235, marked for identification as
21 started to excessively call -- 21 of this date.)
22 A. You mean body checks? 22 BY MR. GUDMUNDSON:
23 Q. Yeah. 23 Q. Mr. Burke, the court reporter has
24 A. They'd be admonished. We have 24 handed you what's been marked as Exhibit 22.
25 supervisors. Their supervisor would call them 25 It is a single-paged document produced by the
Page 315 Page 317

1 in and say you're calling penalties that 1 NHL in this litigation. The Bates number on
2 aren't penalties. 2 this document is NHL0201235. This looks to be
3 Q. Okay. 3 an e-mail from you to someone named Ian
4 A. You're picking one line out of 4 Meagher, Tuesday, August 12, 2014.
5 each -- read the next sentence, too. "Obvious 5 Do you recall this e-mail?
6 fouls shall be call at all times." 6 A. Yeah.
7 Q. And I absolutely will read that. 7 Q. You were with the Calgary Flames
8 It reads: "Obvious fouls shall be called at 8 at the time?
9 all times. This shall apply regardless of 9 A. Yeah.
10 whether or not the foul is directly involved 10 Q. Who was the Ian Meagher?
11 in the play." 11 A. Ian Meagher is a -- let's see.
12 That means an off puck shot or 12 Hang on. Ian Meagher is the son of Gary
13 something like that, right? 13 Meagher who is Director of Media Relations or
14 A. Yeah. 14 whatever at the NHL. And I had hired him to
15 Q. Okay. But the first directive 15 work with the Leafs and then the Marlies. And
16 shall not bee excessively penalized so I'm 16 he did research projects for me from time to
17 trying to understand how that's policed. If 17 time.
18 this is the directive to GMs as to how the 18 Q. So who are the Marlies? Is that
19 season is going to be officiated, would this 19 the minor league affiliate?
20 type of memo also be sent to the officials? 20 A. That's the American Hockey League
21 A. Yeah. 21 affiliate of the Toronto Maple Leafs.
22 Q. Would the same memo be sent to the 22 Q. So was Ian Meagher sort of like an
23 officials? 23 intern for you?
24 A. Probably different wording. There 24 A. I don't know if he interned for
25 would be things in there -- I haven't read the 25 me. He worked for the NHL and -- sorry. He

612.338.3376
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1 worked for the Leafs. I don't know if he 1 A. No. It didn't go to trial.
2 interned first. But he worked for the Leafs 2 Q. Okay. Did you take a deposition
3 and then went to Marlies. 3 there?
4 Q. But I think you testified that you 4 A. They took some equivalent, but,
5 had him do research for you from time to time? 5 yes.
6 A. Yeah. Even after I went to 6 Q. You made a written statement?
7 Flames. He's a real whiz with a computer and 7 A. No. They took some statement with
8 he'd bang out stats and stuff. Sometimes not 8 lengthy and obnoxious questioning like this
9 about hockey. Sometimes I was giving a speech 9 one.
10 on a business thing and I had to ask him, you 10 Q. Based on the comments you've made
11 know, what are the top -- give me the top five 11 to your -- several of your close friends in
12 companies in sales in Canada. And he'd bang 12 these e-mails, I won't take too much offense
13 it out. 13 fence at that but --
14 Q. He would find content for you. 14 A. You shouldn't.
15 A. Yeah. 15 Q. Do you recall the Bertuzzi
16 Q. In this you write: "Bertuzzi 16 incident?
17 trial approaching. Much will be made of my 17 A. Yes.
18 style of play. How hard is it to 18 Q. Was Bertuzzi sent out to hit Moore
19 cross-reference suspensions by GM?" 19 by anyone?
20 Did I read that correctly? 20 A. Todd Bertuzzi -- everyone in the
21 A. Yeah. 21 building was screaming at him to get off the
22 Q. You continue on. It reads: "In 22 ice when this happened. The coaching staff.
23 other words, all GM's with over 400 NHL games 23 Us upstairs. Everybody was screaming at him
24 last 20 years. How many suspensions would 24 to get off the ice.
25 they any average every 82 games? And what 25 Q. Why?
Page 319 Page 321

1 severity? Same for fighting majors. Would 1 A. Because we didn't want him to get
2 that be hard to calculate? Help!" 2 into a fight with Steve Moore. I think he was
3 Did I read that correctly? 3 on the ice killing a penalty when this
4 A. Yeah. 4 happened. But another player went over and
5 Q. What were you looking for here to? 5 engaged Steve Moore and Todd saw it and
6 A. I thought -- and the case settled 6 thought, Well, I better do something and
7 so there was never an answer to this that I'm 7 started chasing him down the ice. And we were
8 aware of. I thought that Moore's lawyers in 8 all yelling and screaming up from my box, No,
9 the Bertuzzi case, he was a player that was 9 no, don't. And he hit him.
10 attacked by my player in Vancouver. And I 10 Q. Why did you get the sense that
11 thought they'd say, Well, this is the type of 11 something bad was going to happen with a fight
12 style you play, but I think -- what I was 12 or something? I mean, why was everybody
13 hoping for and I think actually we -- I'll 13 yelling?
14 actually have him do it. I think I'd been one 14 A. Because he was chasing Steve Moore
15 the of least suspended GMs in my tenure. 15 down the ice tapping at him and grabbing at
16 Certainly below the average. Because I don't 16 his sweater trying to get him to fight.
17 support play outside the rules. 17 Q. Oh. And in that your hockey
18 Q. When you say that you think you 18 experience was pretty clear indication of what
19 were one of the least suspended GMs, is that 19 he was looking to do?
20 based on the data that Ian Meagher got you? 20 A. Yeah. And we didn't want that.
21 A. No, he didn't respond to this. I 21 We didn't want any retribution against Steve
22 think the case settled. I don't recall ever 22 Moore. It's was a long story but we had
23 seeing this, the response. 23 played three games in a row against Colorado.
24 Q. Did you testify in any way to the 24 Not in row but three games. Three incidents.
25 Bertuzzi trial? 25 So game one, Steve Moore elbows Marcus Näslund

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1 and hurts him. Game two, we're in Colorado. 1 right. Associate Counsel --
2 Everyone's there expecting a big brawl. 2 A. Yeah.
3 Nothing happens. We play an overtime game, 65 3 Q. What is it?
4 minutes, nothing happens. Come back to 4 A. Liut.
5 Vancouver. We got down early. We scored a 5 Q. Liut. Associate Counsel NHLPA to
6 couple quick goals. I actually thought we 6 you, December 11, 1997; is that correct?
7 were going to win the game. Then they scored 7 A. Yes.
8 a couple quick goals. It was out of reach. 8 Q. And do you know what he's
9 And Todd Bertuzzi on his own went after Steve 9 responding to here? You must have sent him a
10 Moore. With everyone in the building 10 letter?
11 screaming at him don't do it. 11 A. I must have.
12 Q. Well, why didn't you want him to 12 Q. Okay. I'll read the first line
13 do it? If Moore was injuring the guys on your 13 for context. He writes: "As you are aware,
14 team, wouldn't you want him to do it? 14 I've been on our annual fall team tour and
15 A. We wanted Steve Moore on the ice. 15 thus the delay in my responding to your
16 Q. Why did you want Steve Moore on 16 letter. I have now had a chance to revisit
17 the ice? 17 this correspondence."
18 18 Your response -- "My response to
19 19 your letter, which included in part your
20 20 'beliefs, views, mystifications,
21 21 discouragement, principles, amazements,
22 22 certainties, oppositions, sensibilities,
23 23 shame, motives, irritation, dismay and logic'
24 24 is the same now as it was when I first read
25 25 it. While you may wish to retain your letter
Page 323 Page 325

1 1 for your 'potential litigation' files, the
2 2 record on these matters its significantly
3 3 different from that which you portray."
4 4 Did I read that correctly?
5 5 MR. GOLDFEIN: Object to the form
6 Q. Thank you. 6 of the question.
7 A. My interest in this was I wanted 7 A. Yes.
8 the empirical evidence to support what I think 8 Q. Does that give you any
9 is my teams have been well under the line in 9 clarification as to what this -- your what
10 terms of suspensions. 10 letter was about? The re. line is about
11 Q. Okay. 11 helmets?
12 (Burke Exhibit 23, letter dated 12 A. He mentions that and two other
13 December 11, 1997 bearing production 13 issues.
14 numbers NHL1353452 through NHL1353453, 14 Q. Um-hum. Okay. Well, let's --
15 marked for identification as of this 15 A. I don't recall what this was
16 date.) 16 about.
17 BY MR. GUDMUNDSON: 17 Q. Okay. The paragraph below that
18 Q. Mr. Burke, the court reporter has 18 reads: "The issue of helmets has been debated
19 handed your what's been marked as Exhibit 23. 19 between us at length. Our positions are on
20 It's a document produced by the NHL in this 20 the record. With respect to the other two
21 litigation. First page is Bates numbered 21 issues (goldtenders' equipment and the
22 NHL1353452. The second page -- or the last 22 League's unilateral adoption of League wide
23 page is NHL1353453. 23 neuropsychological testing) suffice it to say
24 This is a letter from Michael D. 24 we are completely at odds with the League's
25 Liut. I don't know if I'm pronouncing that 25 views."

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1 Did I read that correctly? 1 preserving their grievance position. I don't
2 A. Yeah. 2 know. I don't recall.
3 Q. Does that given any greater 3 Q. Okay.
4 recollection? 4 (Burke Exhibit 24, memorandum
5 A. No. 5 dated March 19, 2010 bearing production
6 Q. Do you know what he means by the 6 numbers NHL-BOG-0007393 through
7 League's unilateral adoption of League wide 7 NHL-BOG-0007398, marked for
8 neurological testing? 8 identification as of this date.)
9 A. Well, this is the year that we put 9 BY MR. GUDMUNDSON:
10 it in. This is what I alluded to earlier. I 10 Q. Mr. Burke, the court reporter has
11 thought there was some union objection to it. 11 handed you what's been marked as Exhibit 24.
12 Q. Okay. But here he's saying that 12 It is a document produced by the NHL in this
13 the League unilaterally adopted it; was that 13 litigation. The first page bearing the Bates
14 right? 14 number NHL-BOG-0 -- I'm sorry. This was not
15 A. That's his position in this 15 produced -- I'm sorry. It was produced by the
16 letter. But... 16 NHL. Let me start over.
17 Q. Okay. Is that not correct? Did 17 The Bates number bears on the
18 the legal not unilaterally adopt it to your 18 first page is NHL-BOG-0007393. And on the
19 knowledge? 19 last page reads NHL-BOG-0007398. This is a
20 A. I don't remember the -- this is 20 memo from the NHL letterhead. It reads --
21 1997? 21 says Memorandum at the top and date is March
22 Q. Long time ago. I understand. 22 19, 2010 from Gary Bettman, Colin Campbell to
23 A. Yeah. I don't recall it. As I 23 NHL Governors, NHL Alternate Governors.
24 said earlier in this deposition, I recall that 24 Starting on page 1 right after the
25 there was a union objection to it. This 25 Executive Summary it's written: "As you are
Page 327 Page 329

1 appears to say that anything -- we must have 1 undoubtedly aware, there have recently been
2 been instituting the players have to wear a 2 incidents involving 'hits to the head' in our
3 certified helmet. And he's taking the 3 game that have resulted in concussions to
4 position that's a term and condition of 4 vulnerable and unsuspected NHL players. At
5 employment. Obviously, that issue, as far as 5 their meeting last week the NHL General
6 our ability to dictate what's done rule wise 6 Managers engaged in in-depth discussion and
7 or equipment wise, is a term of collective 7 analysis focused on (i) attempting to reduce
8 bargaining. 8 head injuries while maintaining the
9 I don't know why there was this 9 physicality of the game; and (ii) addressing
10 fight over this, but this is what I said to 10 the lateral or 'blind side' hits to the head
11 you when you asked earlier about the 11 of an unsuspecting opponent and resulting head
12 institution of neurological testing, 12 injuries. The consensus is that post-work
13 neuropsychological testing, was that there 13 stoppage rule changes have resulted in an
14 some battle with the union over it to start 14 increase in both the speed of the game and the
15 with. 15 level of contact."
16 Q. I do recall that. I was just 16 Did I read that all correctly?
17 wondering how -- I was trying to circle back 17 A. Yes.
18 how it was adopted in this -- it seemed to be 18 Q. This increase in the speed -- I'm
19 Mr. Liut's position at least that it was 19 sorry.
20 unilaterally adopted although he -- 20 Let me keep reading.
21 A. Yeah. And my guess would be it's 21 "And while the overall number of
22 clear that these things have to be negotiated. 22 concussions has not increased, the evolution
23 I guess it's my recollection that we felt 23 of the game appears to have resulted in a
24 there had been sufficient interplay on this 24 certain type of contact that is potentially
25 that obviously the union disagrees or they're 25 more dangerous then it was previously."

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1 Did I read that correctly? 1 other -- well, strike that.
2 A. Yes. 2 If you go to page 3, the second --
3 MR. GOLDFEIN: Object to the form 3 the first full paragraph down. The last
4 of the question. 4 sentence -- obviously feel free to read the
5 Q. Okay. This increase in speed and 5 whole sentence, but my question is about the
6 contact, is this what you were talking about 6 following sentence.
7 previously about the changes made after the 7 "Accordingly, we do not feel it
8 '04 lockout? 8 would be feasible to immediately enforce the
9 A. Yes. 9 proposed new rule through the assessment of
10 Q. Okay. Do you know what rule is 10 on-ice penalties during the game at this stage
11 being discussed in this document? Was this 11 of the season. We are confident, however, in
12 the precursor Rule 48? 12 the immediate ability of Hockey Operations to
13 A. Yes. 13 consistently and uniformly enforce the
14 Q. Well, not the precursor Rule 48. 14 proposed rule through the application of
15 It was Rule 48, right? 15 supplementary discipline."
16 MR. GOLDFEIN: It is Rule 48. 16 Did I read that correctly?
17 It's the first version of Rule 48. 17 MR. GOLDFEIN: Object to the form
18 MR. GUDMUNDSON: First version of 18 of the question.
19 Rule 48. Thank you. 19 A. I'm sorry. I'm not -- I can't
20 Q. Okay. If you look on page 2 20 find this. Where are you?
21 there's a Section C, March 2010, General 21 Q. Oh, I'm sorry. It's on page 3.
22 Managers' Recommendation. I'm going to try to 22 A. Yeah.
23 jump to the middle where it says "The general 23 Q. It's right in the middle. It's
24 managers unanimously recommended..." 24 the first full paragraph. Not the one at the
25 Do you see that? 25 top. It's the paragraph with the indentation
Page 331 Page 333

1 A. Yes. 1 below that. It starts with "As was also
2 Q. "The general managers unanimously 2 discussed..."
3 recommended that lateral, back pressure, or 3 A. Okay.
4 blind side hits to an opponent where the head 4 MR. GOLDFEIN: You're reading the
5 is targeted and/or the principal of contact, 5 last sentence of that paragraph and the
6 should have no place in our game and should be 6 first sentence of the next paragraph.
7 penalized. The general managers believe that 7 Q. Yeah.
8 the elimination of these types of hits should 8 A. Okay.
9 significantly reduce the number of 9 Q. Is this your recollection of how
10 concussions, without adversely affecting the 10 this was implemented? Was it implemented part
11 level of physicality in the game." 11 of the way through the year but not with the
12 Did I read the correctly? 12 penalty attached?
13 A. Yes. 13 A. I think that's correct.
14 Q. So you were a general manager at 14 Q. Okay. But the GMs or -- I'm
15 this time, correct? 15 sorry. The authors of this memo, Gary Bettman
16 A. Yep. 16 and Colin Campbell felt that they could
17 Q. With the Leafs? Maple Leafs? 17 enforce this rule through supplementary
18 A. Yep. 18 discipline, correct?
19 Q. Was it your expectation that these 19 A. Correct.
20 concussions could be -- let me read it -- 20 Q. Do you believe that to be true?
21 "significantly reduced by the imposition of 21 Can you enforce a rule through supplemental
22 this rule change"? 22 discipline without an on-ice penalty?
23 A. Not just concussions. Other 23 A. Yeah. Well, you don't want to
24 injuries, too. But, yes. 24 have it in isolation but as an interim basis,
25 Q. Do you think there are any 25 yes. As an interim measure, yes.

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1 Q. Okay. Why don't you want that to 1 discipline; is that correct?
2 be the case otherwise? 2 MR. GOLDFEIN: Object to the form
3 MR. GOLDFEIN: Object to the form 3 of the question.
4 of the question. 4 A. I would have to check the record.
5 A. I'm sorry. Why wouldn't you want 5 I don't know if that's true or not.
6 a penalty? 6 Q. Okay.
7 Q. You said that -- I don't want to 7 A. I know subsequently they signed
8 misstate your testimony and I'm not sure I 8 off on this at some point. Either
9 understood it. But you said on an interim 9 simultaneously or subsequently.
10 basis it would work to enforce it with 10 Q. Okay.
11 supplemental discipline, but not perhaps on a 11 (Burke Exhibit 25, Minutes of the
12 longer term basis; is that your testimony? 12 Meeting of the General Managers The Ritz
13 A. No. I think -- if that's what I 13 Carlton, Philadelphia - Philadelphia,
14 said let me amend it. 14 Pennsylvania June 2, 2010 bearing
15 Q. Okay. 15 production numbers NHL0139568 through
16 A. I think the ideal is what we 16 NHL0139583, marked for identification as
17 always do, which is propose a rule change, it 17 of this date.)
18 goes to the Competition Committee, the Board 18 BY MR. GUDMUNDSON:
19 of Governors approves it. That gives you time 19 Q. Mr. Burke, the court reporter has
20 to work it into the materials to the officials 20 handed you what's been marked as Exhibit 25.
21 for training camp. 21 It is a document that was produced by the NHL
22 Q. Okay. So for a penalty to be 22 in this litigation. The first page bears the
23 assessed on the ice it has to go through a 23 Bates number NHL0139568. The last page bears
24 rule-making process with the NHLPA? 24 the Bates number NHL0139583.
25 A. Yep. 25 MR. GOLDFEIN: I'm going to assert
Page 335 Page 337

1 Q. But if the NHL wants to do it on 1 a conditional objection.
2 its own, it can enforce it through 2 Q. I'm going to direct your attention
3 supplemental discipline after the fact? 3 to page 8, Mr. Burke, the second-to-last
4 MR. GOLDFEIN: Object to the form 4 paragraph down where it says "Commissioner
5 of the question. 5 Bettman summarized..."
6 A. The fact is they were working with 6 And that's 8 of 16 if you look at
7 the PA at this time. This is in the memo, 7 the top.
8 that they're simultaneously tracking it to get 8 A. Yeah.
9 NHLPA approval to attack it this way. 9 Q. I'm going to read that. It
10 Q. But they had not approved it at 10 says -- let's take a step back. I don't
11 the time that it was implemented and enforced 11 know -- have you had a chance to look this
12 with supplementary discipline, correct? 12 through? Are you familiar with this document?
13 A. They were pretty confident -- I 13 A. I mean I'm reading it now.
14 think it says: "Please be advised that we are 14 Q. Okay. If you look at the top of
15 simultaneously working with the NHLPA to seek 15 page 7 it says Head Hits.
16 appropriate approval of the rule change from 16 A. Yes.
17 the Competition Committee. The initial 17 Q. And it says: "Mr. Campbell
18 feedback we have received from the NHLPA is 18 reviewed the wording of the rule regarding
19 that the player representatives on the 19 head hits that had been proposed and approved
20 Competition Committee appear to be supportive 20 by the general managers at their March 2010
21 of the proposed rule, including our proposed 21 meeting."
22 staging of implementation and enforcement." 22 Did I read that correctly?
23 Q. Okay. But the NHL had not given 23 A. Yeah.
24 its approval to this rule formally when the 24 Q. This being the almost same time
25 NHL started to enforce it through supplemental 25 frame as the last exhibit.

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1 MR. GOLDFEIN: No. That's not 1 Competition Committee today?
2 accurate. 2 A. No.
3 MR. GUDMUNDSON: Well, it's -- 3 Q. You used to, though, correctly --
4 MR. GOLDFEIN: Which time frame? 4 correct?
5 The document's time frame or the 5 A. I went to one meeting.
6 meeting? I'm confused. 6 Q. Is the Competition Committee
7 MR. GUDMUNDSON: He's referring to 7 jointly staffed by members of the NHL and
8 the March 2010 meeting here. And we're 8 members of the NHLPA?
9 also -- we just looked at a document 9 A. Yes.
10 discussing the initial Rule 48 from 10 Q. In the very last -- in the very
11 March 2010. And I'll let the witness 11 last paragraph of that section, it reads:
12 with correct me if I'm wrong about that. 12 "Brian Burke commented that the input of the
13 MR. GOLDFEIN: Well, what was the 13 players on rule changes was essential, but
14 question? It was confusing. 14 that the Competition Committee should report
15 A. This is a June 2nd meeting. 15 to the general managers as opposed to the
16 Q. Okay. Is this discussion here 16 reverse structure. Mr. Burke stated that it
17 related to Rule 48? 17 was a mistake to give the players the right to
18 A. Yep. 18 vote on the rule proposals of the general
19 Q. Okay. Thank you. 19 managers. Mr. Campbell agreed that the timing
20 So now let's go back to page 8. 20 of the Competition Committee meetings and the
21 Just with the context that it pertains to Rule 21 general managers' meeting should be reversed."
22 48. Down near the bottom second paragraph 22 Did I read that correctly?
23 from the bottom, as we were looking before, it 23 A. Yes.
24 reads: "Commissioner Bettman summarized the 24 Q. Did that ever happen? Were they
25 consensus of the general managers that (1) 25 ever reversed?
Page 339 Page 341

1 supplemental discipline should be applied 1 A. Yes. I was. Very swiftly.
2 whether or not a player was injured; (2) the 2 Q. What was the reason for that?
3 threat of supplemental discipline had already 3 A. Well, Bill Daly either got me at
4 had a positive impact on the mentality of the 4 this meeting or told me later, he said, I
5 players..." 5 don't care what your view is. The way this
6 Did I read that correctly? 6 works is that the Competition Committee and
7 A. Yep. 7 the NHLPA, in fact, have to agree to rule
8 Q. Is that consistent with your 8 changes.
9 understanding of supplemental discipline? 9 Q. So you were vetoed on this
10 Does it work to change the mentality of the 10 proposal?
11 players? 11 A. Immediate -- close to immediately
12 A. Yes. 12 and firmly and told to shut my mouth about it,
13 MR. GOLDFEIN: Object to the form 13 too.
14 of the question. 14 Q. Okay. Did you respond?
15 Q. I'm sorry. Your testimony was? 15 A. No. The League tells us stuff and
16 A. Yes. 16 we generally accept it. We only whine about
17 Q. Okay. And this is with respect to 17 hockey stuff.
18 hits to the head, correct? 18 Q. Okay. If you look at the next
19 A. Correct. 19 paragraph it says Role of the Agitator.
20 Q. Could you turn to page 14 of 16, 20 Do you see that?
21 please. 21 A. Yes.
22 A. (Witness complies.) 22 Q. This reads: "Mr. Burke remarked
23 Q. There's a rule at the top that 23 that while he did not have a solution, he was
24 says Competition Committee. And the 24 tired of players who agitated but were not
25 Competition Committee -- do you sit on the 25 held accountable for their actions. Mr. Burke

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1 felt that these players were dangerous as they 1 Q. Did you ever convey to your
2 were often responsible for injuring star 2 players while you were a GM or had another
3 players and had a negative impact on the game. 3 position with a club that they did not have to
4 Mr. Burke stated that he was not in favor of 4 fight if they did not want?
5 removing instigator penalty, as he did not 5 A. Yeah.
6 believe all players should have to fight, but 6 Q. Did you ever say that to Colton
7 he believed that thought should be given as to 7 Orr?
8 how to hold these players accountable." 8 A. No.
9 Did I read that correctly? 9 Q. Did you ever say it Steve
10 A. Yes. 10 Montador?
11 Q. What do you mean by -- what does 11 A. Steve Montador never talked to me
12 it mean by "players should not have to fight", 12 about fighting when I had him as a player. I
13 that you were not in favor of removing the 13 had him for a brief time. Never said a word
14 instigator penalty? 14 about -- I find that article bewildering
15 A. That all players should not have 15 because -- I actually had a good relationship
16 to fight. 16 with him and I don't -- he never said a word
17 Q. Okay. Certain players should? 17 about that to me.
18 A. If a player doesn't want to fight 18 Q. So which players did you tell they
19 in our League, I don't think he should have to 19 didn't have to fight?
20 fight if he doesn't play a certain way. I 20 A. Players that asked me. Players --
21 don't think Sidney Crosby should have to 21 Markus Näslund asked me in Vancouver. "I know
22 fight. 22 you like it rough. Do you want me to fight
23 Q. What about folks whose sort of job 23 once in a while?" I said, "Don't you even
24 responsibilities it is to fight? 24 think about it."
25 MR. GOLDFEIN: Object to the form 25 Q. Was that -- I'm sorry.
Page 343 Page 345

1 of question. 1 A. I don't think a player should have
2 A. Well, that's -- those players that 2 to fight in that League. But I do think if
3 fight are going to fight. So now you've got 3 you're going to play a certain way you should
4 the evolution of the game, you lose the 4 be accountable.
5 heavyweights, now the rats are taking over, 5 Q. So he, Markus Näslund, said --
6 what do you do. You got an instigator 6 acknowledged that he knew that you liked the
7 penalty. So even a guy that thinks it's in 7 rough play but he wanted to know if he should
8 his job description, he goes after the rat, he 8 fight?
9 gets an extra two-minute penalty. 9 A. Yeah.
10 So I said some thought has to be 10 Q. And so if a player didn't -- you
11 given on how we hold these players 11 think it's safe to say that the players knew
12 accountable. It might be an officiating 12 the physical style of play that you wanted to
13 thing. 13 see on the ice?
14 Q. You think you could do it with 14
15 officiating? 15
16 A. No, I don't. But if you read on 16
17 here it says David Poile -- or George McPhee 17
18 said there should be -- or Lou Lamoriello, I'm 18
19 sorry, more unsportsmanlike conduct penalties 19
20 referees can call. Whatever. But, obviously, 20 Q. Okay. You actually -- right above
21 it's been an issue for years. And I said I 21 that George McPhee paragraph that you referred
22 just want some -- I don't want to remove the 22 there's a paragraph by the David Poile. Am I
23 instigator penalty, but some thought should be 23 pronouncing that right?
24 given as to what do we do to hold these 24 A. Poile, yeah.
25 players accountable. 25 Q. It reads: "David Poile asked why

612.338.3376
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1 the League did not always publicize the fact 1 Q. Well, we're making a distinction
2 that a player or team had been fined. Mr. 2 between team fines and League fines I think
3 Campbell responded that informing the media 3 and you said that League fines are publicized
4 about fines often alerted them to incidents of 4 but team fines are --
5 which they were not aware and brought a 5 A. League fines to players I think
6 negative influence to their coverage." 6 are publicized.
7 Did I read that correctly? 7 Q. Oh.
8 A. Yes. 8 A. So a player gets fined. Some of
9 Q. Wouldn't you want the media to 9 the League fines to club personnel are
10 know about fines of players? 10 publicized and some or not.
11 A. I think the player fines are 11 Q. Okay. Understood.
12 publicized. I think he was talking about team 12 (Burke Exhibit 26, Minutes of the
13 fines. 13 Meeting of the Competition Committee The
14 Q. Why aren't team fines publicized? 14 National Hockey League Offices, Toronto,
15 A. Some of them are and some are not. 15 Ontario, Canada June 18, 2010 bearing
16 Q. How do you decide which ones are 16 production numbers NHL0240133 through
17 and which ones aren't? 17 NHL0240150, marked for identification as
18 A. You'd have to ask Mr. Campbell. 18 of this date.)
19 Q. Okay. Do you have input in that 19 BY MR. GUDMUNDSON:
20 issue as a member of the Calgary Flames? 20 Q. Mr. Burke, the court reporter has
21 A. On whether fines are publicized or 21 handed you what's been marked Exhibit 26.
22 not. 22 This is a document, the first page bearing the
23 Q. Yeah. 23 Bates number NHL0240133. The last page bears
24 A. No. 24 the Bates number NHL 0240150.
25 Q. Do you have a position on that? 25 The heading on this document on
Page 347 Page 349

1 A. I think there's times when a 1 the first page is Minutes of the Meeting of
2 private fine makes sense. I think there are 2 the Competition Committee The National Hockey
3 times when a public fine makes sense. 3 League Offices, Toronto, Ontario, Canada.
4 Q. Which times does a private fine 4 You're listed -- it says "The members of the
5 makes sense? 5 Competition Committee in attendance" right in
6 A. It might be something that took 6 the middle of the page. You're listed first,
7 place, say, under the stands. Say two coaches 7 Brian Burke, General Manager of the Toronto
8 got into in an argument. Or say a coach saw a 8 Maple Leafs.
9 referee walking by and said something 9 Did I read that correctly?
10 inappropriate. I have no problem if that fine 10 A. Yes.
11 is done quietly. Something the public's aware 11 Q. I think you testified earlier you
12 of. Or a coach trashing a referee, they 12 went to one competition meeting.
13 should make that fine public. 13 A. (Indicating.)
14 Q. What about a shot to the head that 14 Q. This is the one?
15 was illegal? Should that fine be -- if 15 A. This is the one.
16 there's a fine for that, should it be made 16 Q. Okay.
17 public? 17 A. And the only reason I believe I
18 A. Those are publicized I believe. 18 was invited is because there was no one else
19 Q. Okay. Is there a rule about 19 in Toronto that day.
20 what's public and what's not? 20 Q. You mean at the club that should
21 A. I don't think so. 21 otherwise attend or --
22 Q. It's up to the individual teams? 22 A. I don't know who's on the
23 MR. GOLDFEIN: Objection. 23 Competition Committee. I wasn't. I was a
24 A. No. I think it's up to the 24 fill-in.
25 League. 25 Q. Somebody called and asked you to

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1 attend? 1
2 A. Yeah. I was in Toronto and they 2 MR. GUDMUNDSON: There's a bakery
3 need four and four. Ed Snider is the 3 in Edina called Wuolett's and it's not
4 tie-breaker I guess. Or no, sorry. Five and 4 spelled the same way.
5 five. They needed another GM. 5 MR. GOLDFEIN: It's Ouellet.
6 Q. Okay. And that meeting was in 6 A. He's a union guy.
7 Toronto and she said come on down? 7 Q. Okay. "Mike Ouellet lamented
8 A. You live here. Yeah. Come on 8 comments made by the League at the time that
9 down. 9 the NHLPA's approval was not necessary in
10 This is the only minutes you'll 10 order to implement the new standard during the
11 see with me in the Competition Committee role. 11 season."
12 Q. Okay. If you turn to page 3, 12 Did I read that correctly?
13 please, it says 3 of 18 at the top right of 13 A. Yes.
14 the page. If you go down to the last two 14 Q. Are you aware of those comments?
15 paragraphs starting "Colin Campbell 15 A. I think they were mine.
16 responded..." 16 Q. Okay. So you are aware of them,
17 Do you see that? 17 in other words.
18 A. Yeah. 18 A. Well, I believe he's referring to
19 Q. Okay. I'm actually going to 19 the comments that I made that the League
20 jump -- you can read that whole paragraph, of 20 quickly disabused me of.
21 course, but I'm going to start where it says: 21 Q. Okay. There's the discussion that
22 "Mr. Campbell stated that after receiving 22 follows. If you go down one, two, three,
23 approval..." 23 four, five --
24 About four lines down in the 24 MR. GOLDFEIN: Which page are we
25 middle. 25 on?
Page 351 Page 353

1 MR. GOLDFEIN: Oh. There's the 1 MR. GUDMUNDSON: We're on page 4
2 answer to your question. 2 of 18. I'm sorry.
3 (Document review.) 3 Q. It's five paragraphs down. The
4 Q. Do you see that? 4 one starting "Commissioner Bettman
5 A. Yeah. 5 explained..."
6 Q. Are you ready? Okay. 6 Do you see that?
7 It says: "Mr. Campbell stated 7 A. Yeah.
8 that after receiving approval from the 8 Q. It reads: "Commissioner Bettman
9 Competition Committee, the mid-season 9 explained and that the head hit rule had not
10 implementation of the new supplemental 10 been drafted when the general managers arrived
11 discipline standard established at these 11 at their winter meetings and that there had
12 meetings had been approved 30 to zero by the 12 been nothing to share with the NHLPA until the
13 Board of Governors." 13 conclusion of those meetings. Commissioner
14 Did I read that correctly? 14 Bettman noted that the general managers had
15 A. Yes. 15 agreed in November that they had to discuss
16 Q. He goes on: "Mike Ouellet" -- did 16 the Mike Richards hit on David Booth at their
17 I pronounce that right? 17 winter meetings, but had not put pen to paper
18 A. Ouellet, yeah. 18 on the wording of a new rule until these
19 Q. Ouellet? 19 winter meetings, at which they learned that
20 MR. GOLDFEIN: Ouellet. 20 roughly 50 percent of the NHL's concussions
21 Q. Who's Mike Ouellet? 21 resulted from 'lateral' contact with the head.
22 MR. GOLDFEIN: Ouellet. 22 Mr. Bettman added that the general managers
23 Q. Who's Mike Ouellet? 23 had been opposed to a zero tolerance rule for
24 THE WITNESS: Ouellet? Is that 24 head hits, as they felt contact was an
25 how you say that? Oh. Ouellet. 25 important part of hockey, and wanted to be

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Page 354 Page 356

1 careful to draft a rule which addressed bad 1 Commissioner responded. Which one?
2 hits to the head without going too far." 2 MR. GUDMUNDSON: It says that
3 Did I read that correctly? 3 "Commissioner Bettman responded that
4 A. Yeah. 4 player input..."
5 Q. I'm going to keep reading because 5 MR. GOLDFEIN: Got it.
6 this is where the questions will come in. 6 Q. Are you there, Mr. Burke?
7 "Commissioner Bettman agreed that 7 A. Yep.
8 good communication between the League and the 8 Q. Okay. And feel free to read it,
9 NHLPA was important and that the Competition 9 of course. I'm going to read it into the
10 Committee was a critical potential of this 10 record.
11 communication but felt that sometimes 11 It reads: "Commissioner Bettman
12 circumstances presented the League with issues 12 responded that player input on rule changes
13 that for the good of the game had to be 13 was vital, noting that sometimes in operating
14 addressed in realtime and this had been one of 14 the game and the business of hockey the League
15 those circumstances. Commissioner Bettman 15 did not have the luxury of waiting and had to
16 stated that the hit by Matt Cooke had required 16 react quickly. Commissioner Bettman confirmed
17 an immediate response from the League and 17 that this was not the better course of
18 general managers." 18 conduct.
19 Did I read that correctly? 19 David Poile remarked that the
20 A. Yes. 20 bottom line was that the general managers had
21 Q. Does that refresh your 21 done the right thing and that a change had
22 recollection as to when the NHL implemented 22 been made to protect the players. Mr. Poile
23 the Rule 48? 23 stated that everyone was happy with the role
24 A. Yeah. 24 played by the Competition Committee."
25 Q. Did they implement it without 25 Did I read that correctly?
Page 355 Page 357

1 NHLPA approval because of the exigent 1 A. Yes.
2 circumstances of the Matt Cooke hit? 2 Q. Does that further refresh your
3 A. That's what it says, yes. 3 recollection whether Rule 48 was implemented
4 Q. Is that consistent with your 4 without the approval of the NHLPA?
5 experience and knowledge? 5 A. It would appear from this that it
6 A. Well, my experience was that's 6 was implemented on an interim basis without
7 what I thought we were doing. And I was told, 7 their approval.
8 no, we have to do this is in conjunction with 8 Q. Okay.
9 the union. And the memo from the meeting says 9 MR. GUDMUNDSON: Have we been
10 that Daly said they were seeking that 10 going an hour?
11 cooperation and approval at the same time. 11 THE VIDEOGRAPHER: An hour and six
12 Q. Okay. 12 minutes.
13 A. So I don't remember this 13 MR. GUDMUNDSON: Let's take a
14 conversation. I do now as I read it. 14 break at this point if that's okay with
15 Q. If you go -- sorry. Can you turn 15 everyone.
16 to page 5 of 18, please. One, two, three, 16 MR. GOLDFEIN: How much have we
17 four, five -- six. There's the sixth 17 done total?
18 paragraph down where it says "Commissioner 18 THE VIDEOGRAPHER: The time is
19 Bettman responded..." 19 4:32. We're going off the record.
20 Do you see that? 20 (Recess taken.)
21 MR. GOLDFEIN: Page what? 21 (Burke Exhibit 27, e-mail dated
22 MR. GUDMUNDSON: Five of 18. 22 10/1/2011 bearing production numbers
23 MR. GOLDFEIN: Um-hum. 23 NHL1615038 through NHL1615040, marked
24 Q. Let me know if you see it. 24 for identification as of this date.)
25 MR. GOLDFEIN: There's two 25 THE VIDEOGRAPHER: The time is

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1 4:48. We're back on the record. 1 seems to be with the standard, but you are
2 BY MR. GUDMUNDSON: 2 attacking the process. There is nothing wrong
3 Q. Welcome back, Mr. Burke. We just 3 with the process. Brendan is making these
4 took a short break. 4 decisions. And he's doing it the same way it
5 The court reporter has handed you 5 has always been done. He isn't being swayed
6 what's been marked as Exhibit 27. It's a 6 or dictated to by anyone, much less by
7 document produced by the NHL in this 7 'non-hockey people'."
8 litigation, the first page bearing the Bates 8 Did I read that correctly?
9 numbers NHL1615038 and the last page bearing 9 MR. GOLDFEIN: Object to the form
10 the Bates numbers number NHL1615040. 10 of the question.
11 This appears to be an e-mail 11 A. Yes.
12 string between you and Brendan Shanahan at 12 Q. Okay. Do you know what he refers
13 least to start, but that progressed up the 13 to by "non-hockey people"? Is that a term
14 chain and involved Bill Daly and I believe 14 that you use?
15 Gary Bettman. 15 A. Yes.
16 The date on this is October 1, 16 Q. What does it mean?
17 2011. The e-mails are all around that time. 17 A. Well, when we started the
18 Do you recall this confrontation 18 Department of Player Safety, Brendan moved
19 or whatever it is? 19 that department to New York -- here in New
20 A. It was a confrontation. 20 York and set up a separate Situation Room for
21 Q. Okay. What was this about? 21 Player Safety. And there were people hired
22 A. Brendan Shanahan was the new "Dean 22 that we weren't consulted about or knew
23 of Discipline," if you will, and he handed 23 anything about. People involved in Hockey
24 down a couple of suspensions on players. And 24 Operations are people we knew and were
25 I objected to the level and the process. This 25 comfortable with. And we didn't know who
Page 359 Page 361

1 is as much about the process as the levels 1 these new people were.
2 that he was imposing. 2 So he handed down at least one
3 Q. Where you upset with -- because 3 suspension I think to Wisniewski. He
4 you felt that the punishments were too severe? 4 suspended one of my players. And, again, this
5 A. Yes. 5 is like when Colie came in and I said we -- my
6 Q. I'm going to skip to the front 6 quotes were -- we asked -- the GM's wanted a
7 page. There's an e-mail right in the middle 7 higher standard on supplementary discipline.
8 of the page from Bill Daly to you and it 8 We said the players aren't getting the
9 9 message. You have to up the standard. You
10 Do you see that? 10 have to give more games. Longer suspensions.
11 A. Yes. 11 But then he gave Wisniewski eight
12 Q. Is that Gary Bettman's e-mail 12 for something that would have been four the
13 address? 13 year before. And he gave another player one
14 A. Yes, it is. 14 that was I thought triple what it would have.
15 Q. Bill Daly writes to you -- 15 And that's when I said to him basically -- and
16 MR. GOLDFEIN: We really have to 16 there were phone calls in here as I recall --
17 make this confidential now that you put 17 basically said, you know, what the hell are
18 it on the record that way. 18 you doing, and who are these knew people.
19 MR. GUDMUNDSON: Okay. Sorry. I 19 So if you see my note jumping
20 didn't realize -- 20 around, page 2, the second full paragraph: "I
21 MR. GOLDFEIN: So the Commissioner 21 am told you hired 'your guys' and they are
22 doesn't get buried with 2 million 22 involved? What are their backgrounds?"
23 e-mails. 23 Q. Um-hum.
24 Q. Okay. The e-mail reads: "Burkie, 24 A. I also objected to -- it appeared
25 I think you are off base here. Your problem 25 to me that the jury was composed of some

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1 guys -- player safety guys that I'd never 1 before about hard hockey guys. Do you
2 heard of, and some nights it might be the 2 consider people who are not hard hockey guys
3 hockey ops guys, some nights it might be all 3 to be hockey guys?
4 of them; whereas, in the past these decisions 4 A. Yes. But my information was these
5 were handed down by a discrete group of 5 were just civilians.
6 people, hockey people, that we all had 6 Q. I think you testified you don't
7 confidence in. 7 know who it was, right?
8 So I said to him, "What is the new 8 A. Yeah.
9 system? Who are these people? Who has a 9 Q. And you never found out?
10 vote? Does the jury change? I realize that 10 A. I was told anecdotally they were
11 players don't -- that people in the League 11 people that had come on board that weren't
12 don't work seven days, but on Saturday if 12 hockey people. So I went who are they, what's
13 Fred's at a wedding, who fills in? Who are 13 their background.
14 these people?" 14 Q. Okay.
15 And so he wrote back and said: 15 A. And it turns out it was all
16 "If you don't like to way I'm doing this, you 16 kosher. The non-hockey people are just
17 take it to Gary and Bill." 17 marking people. So they're checking off
18 And I said: "You're goddam right 18 incidents and sending it to Brendan to look at
19 I will" and I did. This is a two-pronged 19 or someone else to look at. So I was
20 objection. One is tell me how the process 20 satisfied on the process. It's the way it's
21 works so I know so I can tell my players how 21 always been done. Here are the people who
22 it works. Who's the jury, how is it done, 22 have a vote. And then I thought the standard
23 who's consulted. 23 came back to what it should be.
24 And then second, who told you to 24 Q. Okay. If you go a few lines down
25 triple the standard? Who told you to go 25 where it says "I have heard repeatedly..."
Page 363 Page 365

1 triple on this? 1 it's along the right about three sentences
2 I mean, I'm a player safety guy. 2 down.
3 I pushed for Rule 48 more than anybody. But I 3 A. Yeah.
4 want, okay, who's doing it. So if my players 4 Q. "I have heard repeatedly at
5 go in front of a jury, who's the jury that 5 managers' meetings over recent years that way
6 night? Is it six guys, is it twelve guys? 6 to minimize dangerous hits is to penalize them
7 Who are they? Are they hockey people or 7 more severely and to hit repeat offenders
8 non-hockey people? 8 progressively harder until they stop."
9 Q. Okay. And this is Bill Daly 9 Did I read that correctly?
10 responding to you. And if you go a few -- so, 10 A. Yes.
11 again, non-hockey people would -- would a 11 Q. And that's Bill Daly telling you
12 non-hockey person be somebody you didn't felt 12 that that's what he heard at general managers'
13 understood the game? 13 meeting?
14 A. Yeah. Some guy that never played, 14 A. Yes.
15 never worked for a team, never worked for the 15 Q. Is that accurate?
16 League. 16 A. Yes.
17 Q. Did you have find out who was on 17 Q. Okay.
18 -- 18
19 A. No. 19
20 Q. Who Shanahan's guys were? 20
21 A. Nope. 21 Q. At the top is your response to
22 Q. Or whether they were hockey or 22 Bill Daly and you carbon copy Gary Bettman.
23 non-hockey people? 23 The third paragraph down you write: "If we
24 A. No. 24 stay on this course..."
25 Q. Do you consider to be -- we talked 25 Do you see that?

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1 A. Yes. 1 player will end the circus shit but it will
2 Q. You write: "If we stay on this 2 ruin the game.
3 course, hitting will disappear. You guys just 3 A. Right. So what layman will say to
4 sold a record television deal. What did they 4 you is, Okay, if you want to get rid of head
5 buy? Playoffs at 102 percent capacity - what 5 shots give every player that delivers a head
6 did they pay to watch? We will end up with 6 shot 40 games and it'll stop.
7 European hockey here." 7 And so what happens is now I come
8 Did I read that right? 8 in and it's the Pronger on McAmmond thing.
9 A. Yep. 9 You move at the last minute I get forty games
10 Q. What did you mean there? 10 for that. Well, guess what? I'm not even
11 A. I think it's obvious. What I 11 going to try to hit him. I'll just let him go
12 meant was we've got to keep physical play in 12 in the corner and go in there. The hitting
13 this game. It's part of what we sell. We'll 13 goes away if the penalties are too severe.
14 wind up with European hockey if we don't, 14 So I wanted a higher standard, all
15 where there is no hitting. 15 the GMs did. But I felt he was doubling and
16 Q. You didn't think that the public 16 tripling the penalties. A, I think I'm
17 would like that? 17 hitting disappears. B, I don't think it's
18 A. I know the public won't like that. 18 fair to players to unilaterally start a new
19 Q. Is that based on the studies that 19 standard at the start of the year. Even
20 you talked about earlier? 20 though they've been warned the standard was
21 A. It's based on what we sell. It's 21 going up and repeat offenders were going to be
22 how we play. We play a certain style that's 22 targeted.
23 distinctive and it's what we play. I said we 23 Q. Has the League -- has the NHL ever
24 asked for a higher standard. Not going to 24 experimented with a zero tolerance policy for
25 double or triple the -- it's second line of 25 shots to the head?
Page 367 Page 369

1 that e-mail. And my concern -- it's been a 1 A. No.
2 consistent theme through all of this 2 Q. Or hits to the head?
3 documentation, all of my public commentary -- 3 A. No. Shots to the head and hits
4 has been that we've got to take out the circus 4 are very different. No.
5 stuff but keep physical hockey on the ice. 5 Q. Shots to the head is deliberate.
6 Q. Okay. You write -- at the last 6 A hit to the head is where the head is
7 paragraph of your e-mail here you write: "But 7 involved in a body check; is that right?
8 I will point out that there" -- sorry. 8 A. Yes.
9 "But I will point out where this 9 Q. Okay. So the League -- it's asked
10 is leading. This game thrives on physical 10 and answered.
11 contact and severely whacking every player 11 So the league has never even
12 WILL..." and "will" is in all caps "...WILL 12 experimented with a zero tolerance policy like
13 end the circus shit but it will ruin the 13 they have in college hockey, correct?
14 game." 14 A. They don't have a zero tolerance
15 Is that what you mean there? 15 policy in college hockey. They don't. I keep
16 A. Yeah. 16 explaining this. They have a rule that's all
17 Q. Okay. But you wanted to end the 17 shiny. It says we're going to call all hits
18 circus stuff; is that right? 18 that result in contact to the head and they
19 A. Yeah. It says right there, we 19 don't call a lot of them.
20 asked for a higher standard. 20 Q. That's just your personal opinion,
21 Q. Okay. 21 right?
22 A. We wanted the suspensions to go 22 A. I think it's everyone in hockey's
23 up. 23 opinion.
24 Q. But it seems to me in this last 24 Q. Okay. Who else?
25 sentence you're saying severely whacking every 25 A. I think if you ask me any general

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1 manager, you see -- we went to a meeting one 1 Kevin McGran is a journalist, right?
2 time and Gary Meagher said I'm going to show 2
3 how hard it is to call every body check that 3
4 results in contact with the head. I'm going 4
5 to show you a game. So they videotaped a 5
6 game. They took out all the hits. There were 6
7 45 hits in the game. And in seven or eight of 7 Q. He writes to you: "Brian, Brendan
8 them a guy came over just as a defenseman 8 Shanahan was on CBC with Peter Mansbridge and
9 dumped the puck in and got to the red line and 9 said the following: 'We have to also look at
10 he hit him time shoulder to shoulder. But 10 fighting. Now what the final decision is, I
11 their heads bumped. Or he hit a shorter 11 can tell you now, that's obviously something
12 player and he made contact with the head. But 12 we're going to have to look at. But there is
13 it wasn't a viscous head, it was a head shot. 13 no way we would ever deny that it's not
14 Under the college rule, that's a penalty. 14 something that we're looking at closely."
15 Never called. 15 Did I read that correctly?
16 Q. Was this college footage you were 16 A. Yes.
17 watching? 17 Q. Now, is that something that
18 A. No. This is NHL footage. In the 18 general managers we are looking at closely?
19 college rule that's a penalty. It's not 19 A. No.
20 called. So he said you can't -- you say we're 20 Q. Is he talking out of school there?
21 going to call any contact with the head. You 21 A. I think it's his personal view
22 can't. It won't work. So we gotta go after 22 that it's time to look at fighting.
23 the head shots. 23 Q. And you respond to him on page 1.
24 Q. Are you aware of any research 24 This is -- both e-mails are September 30,
25 that's been done on college hockey or any 25 2011. You respond -- this is when you were
Page 371 Page 373

1 other league that has implemented a zero 1 the general manager of the Maple Leafs I
2 tolerance rule and its impact upon injuries 2 believe; is that correct?
3 and concussions? 3 A. Yeah.
4 A. No. 4 Q. Okay. You write: "Shanny, I am
5 Q. Okay. 5 not commenting on this. May I ask who 'we'
6 (Burke Exhibit 28, e-mail dated 6 is? This is news to me. Are we that worried
7 9/30/2011 bearing production numbers 7 about being political correct that we have to
8 NHL0091198 through NHL0091199, marked 8 say we're looking at it even if the managers
9 for identification as of this date.) 9 are not? Please advise."
10 BY MR. GUDMUNDSON: 10 Did I read that correctly?
11 Q. Mr. Burke, the court reporter has 11 A. Yeah.
12 handed you what's been marked as Exhibit 28. 12 Q. What do you mean by being
13 This is a document produced by the NHL in this 13 "politically correct" here?
14 litigation bearing the Bates number -- first 14 A. I said are you being politically
15 page bearing the Bates number NHL0091198 and 15 correct saying that we are looking at it when
16 the last page bearing the Bates number 16 the general managers are not. It was not a
17 NHL0091199. 17 topic in front of the general managers.
18 If you look at the second page of 18 Q. So you're telling Brendan Shanahan
19 this -- if you look at the bottom of page 1 it 19 you know we're not looking at this issue. Why
20 looks like somebody called Kevin McGran at The 20 were you telling the media we are?
21 Star forwarded to you some comments that 21 A. Yes.
22 Brendan Shanahan made about fighting. Do you 22 Q. And you're questioning whether he
23 recall these comments? 23 was doing it just to be politically correct?
24 A. Yes. 24 A. Correct.
25 Q. On page 2 it says -- this is -- 25 Q. There's an e-mail from Brendan

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1 Shanahan back to you, but which he also 1 "Mini-Burkie. Wants me to remind Stephen he
2 forwards to Gary Bettman and Bill Daly. And 2 told him about the head shots."
3 Gary Bettman responds to him. "I think we 3 Did I read that correctly?
4 went too far. This is sensitive territory and 4 A. Yes.
5 we need to be very careful." 5 Q. Do you know what he means by
6 Do you see that? 6 Mini-Burkie here?
7 A. Yeah. 7 A. I think that's a reference to
8 Q. Do you know what that means? 8 David Nonis.
9 A. Yeah. I think he's agreeing with 9 Q. And that he was -- why was he
10 me. That saying we're taking a close look it, 10 calling Dave Nonis a Mini-Burkie?
11 it's gone father than we should have gone. We 11 Burkie's you, right?
12 talk about fighting at GM meetings all the 12 A. Yes.
13 time. It's an open debate. People can talk 13 Q. Why was he comparing him to you
14 about what they want. But it's not 14 when he was making this --
15 something you say to the public we're looking 15 A. Because he worked for me in
16 at this. And then the public's like, Oh, 16 Vancouver and took my job when I got let go
17 they're going to get rid of fighting. When's 17 and worked for me in Toronto and took my job
18 that announcement? 18 when I got let go. He's only about 5-10. So
19 Q. And so you think that Bettman was 19 I think that's what the reference is.
20 just saying be careful, we don't want people 20 Q. He's only 5 foot 10 inches tall?
21 to think that we're going to be eliminating 21 A. Yeah.
22 fighting? 22 Q. Okay. Did you often call to
23 A. Yeah. I think he said we 23 complain about hits on your players?
24 generally do these things behind closed doors. 24 A. This isn't -- I didn't send this.
25 Let's continue. 25 Q. I know. But he's saying -- I
Page 375 Page 377

1 Q. Okay. 1 don't -- I don't -- but he's saying -- he's
2 (Burke Exhibit 29, e-mail dated 2 calling you a Mini-Burkie and you're saying
3 10/14/2006 bearing production number 3 that's because of his height as opposed to him
4 NHL0028554, marked for identification as 4 acting like you or something?
5 of this date.) 5 A. I have no idea.
6 BY MR. GUDMUNDSON: 6 Q. Okay.
7 Q. Mr. Burke, the court reporter has 7 A. I'm not part of this string. I'm
8 handed you what's been marked Exhibit 28. The 8 telling -- I've never heard Dave Nonis called
9 Bates number on this single-page document is 9 Mini-Burkie but I'm guessing that's what this
10 NHL0028554. This starts with an e-mail at the 10 is.
11 bottom from Mike Murphy to Colin Campbell, 11 Q. Okay.
12 October 14, 2006. Subject is Nonis. Is this 12 A. So Dave Nonis called to complain.
13 likely Mr. Nonis we talked about earlier in 13 Murph says to Colie I can't believe Dave Nonis
14 Vancouver? 14 called to complain about this hit. I would
15 A. Yes. 15 like to think I wouldn't make the call. Yeah,
16 Q. Mike Murphy writes: "I find it 16 we call and bitch about stuff all the time.
17 hard to believe that Nonis would call about 17 We e-mail, bitch. Same thing with the e-mail
18 the Cheechoo hit on Krajicek. Would call 18 exchange with Shanny. It's part of our jobs
19 about that hit? I like to think I wouldn't. 19 as GM's. To protect our teams. It's worst in
20 Hockey is hockey. Tough, dirty hits happen. 20 the playoffs. That's where you're trying to
21 Don't get it." 21 get an edge and complaining about things. So
22 Did I read that correctly? 22 I'm guessing they said Mini-Burkie -- said
23 A. Yes. 23 Dave Nonis wants me to remind Stephen that he
24 Q. And above that Colin Campbell 24 told him about head shots. So that would have
25 responds to Mr. Murphy and writes: 25 been in a -- I guess a GM meeting where he

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1 said Steve Walkom I'm guessing that is, the 1 Q. Okay.
2 head of officiating, he reminded him about 2 MR. GUDMUNDSON: I'm not sure if
3 head shots. And the response is -- Mike 3 we have time for another document. I
4 Murphy says: "I think about when we played. 4 don't want to go over deliberately. I
5 Head shots? I that was life in the League. 5 mean I can just --
6 You stood up for yourselves and your coach and 6 MR. GOLDFEIN: Go ahead. Do one
7 GM told you to have some balls or go home. I 7 more document.
8 must be getting too old. I know one thing Lou 8 How much time is left?
9 has got it right. You take care of business 9 THE VIDEOGRAPHER: Six minutes
10 internally. You cry to the League when one of 10 (Burke Exhibit 30, Minutes of the
11 your players gets checked. Jimmy called about 11 Meeting of the General Managers &
12 the water main in Jersey." I don't know what 12 Assistant General Managers Westin
13 that means. 13 Harbour Castle - Toronto, Ontario,
14 Q. Okay. Well, that passage that you 14 November 10-11, 2009 bearing production
15 just read from Mike Murphy responding to Colin 15 numbers NHL1040663 through NHL1040687,
16 Campbell where he says: "Head shots? That 16 marked for identification as of this
17 was life in the League. You stood up for 17 date.)
18 yourself and your coach and GM told you to 18 BY MR. GUDMUNDSON:
19 have some balls or go home." 19 Q. Mr. Burke, the court reporter has
20 Did I read that correctly? 20 handed you what's been marked as Exhibit 29.
21 A. Yeah. 21 MR. GOLDFEIN: No, 30.
22 Q. Is that the way that hockey was? 22 MR. GUDMUNDSON: I'm sorry.
23 A. Yeah. 23 Marked as Exhibit 30.
24 Q. Is that what we talked about 24 Q. This is a document produced by the
25 earlier, the way it was versus the way it is? 25 NHL in this litigation. The first page bears
Page 379 Page 381

1 A. Yeah. 1 the Bates number NHL0140663. The last page
2 Q. Okay. And you believe that that's 2 bears the Bates number NHL0140688.
3 not the way it is anymore? 3 If you go to page 12 of 16 there's
4 A. It's clearly not the way it is 4 a part -- if you go part of the way down the
5 anymore. 5 page, there's a heading that says The State of
6 Q. Okay. What do you think he means 6 the Game.
7 you take care of business internally? I think 7 Do you see that?
8 you've used that phrase a couple of times. 8 A. Yeah.
9 A. Yeah. I think Lou -- he saying 9 Q. Okay. That reads: "Gary Bettman
10 Lou's got it right. Lou never calls the 10 remarked that the general managers were the
11 League. Never called when I worked for the 11 heart and soul of how the game was played on
12 League. He doesn't complain. He just has his 12 the ice and stated that the general consensus
13 team deal with it. 13 around the hockey world was that the game was
14 Q. Did GMs back in the prior era call 14 in great shape. Mr. Bettman cautioned against
15 and complain about penalties and things? 15 overreacting to media hysteria and making
16 A. I wasn't a GM. I would have to 16 changes for the sake of change but felt that
17 assume so. There was no e-mail back then so 17 player safety should always be a focus for the
18 they probably had to call. 18 general managers in their discussions. Mr.
19 Q. Right. Okay. 19 Bettman noted that concussions were the flavor
20 Did you ever tell any players to 20 of the day."
21 have some balls or go home? 21 Did I read that correctly?
22 A. I've told players, Look, don't 22 A. Yeah.
23 call me, don't complain about stuff. If it's 23 Q. Do you know what Mr. Bettman meant
24 not that bad you take care of it. You stand 24 by "flavor of the day"?
25 up for yourself. 25 A. That's the topic in the media.

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1 Q. In the media? 1 dangerous I'm guessing than a punch. But it
2 A. Yeah. 2 was just if this continues to creep into the
3 Q. Okay. I believe your testimony 3 game it's something we need to look at. It
4 before was that the NHL was studying this for 4 was just an alert.
5 a long time and didn't consider this the 5 Q. So if somebody trains to be a
6 flavor of the day. 6 fighter outside of the ring or off the ice
7 A. No. What he's talking about 7 rather --
8 here -- read the sentences together. He said 8 A. Well, they use roundhouse kicks,
9 caution against overreacting to media 9 too, in UFC. I don't think we want those in
10 hysteria. Making change for the sake of 10 our fights.
11 change. Player safety should always be a 11 Q. Well, not with skates on your
12 focus and cautions against the flavor of the 12 foot, right?
13 day in terms of media hysteria. It hasn't 13 A. No.
14 changed the League's approach as a leader in 14 Q. I get that.
15 this area going back to '97. 15 But -- so how do you define the
16 Q. Okay. And so what media 16 parameters of fighting in hockey?
17 hysteria -- this is 2009. I guess I'm 17 A. I don't know. This was -- Colie
18 wondering what media hysteria means. That the 18 put this on and said there's two fights where
19 media was writing more about head injuries? 19 it looks like it's changing, there's no other
20 A. Yeah. I'm guessing. 20 examples of it, just something we got to keep
21 Q. Okay. Safe to say that's 21 an eye on.
22 consistent with your view as well, that you 22 Q. Were you aware of any players
23 shouldn't react to media hysteria? 23 engaging in boxing or other --
24 A. Correct. 24 A. Yeah. Some players have.
25 Q. Would you turn to page 17 of this 25 Q. In order to train themselves to
Page 383 Page 385

1 document. At the very bottom where it says 1 fight on the ice?
2 UFC Fighting. 2 A. Yeah.
3 A. Yeah. 3 Q. Okay. Can you -- there's a
4 Q. Here it reads: "Colin Campbell 4 section that starts on page 18 and there's a
5 showed the group videos of two fights 5 heading called Hits to the Head. And these
6 (involving Brad Staubitz and Pat Jablonski) 6 being meeting minutes, there's a number of
7 where the players appeared to use their 7 entries with various attendees entering their
8 forearms to punch and asked the general 8 thoughts or at least as recorded by the note
9 managers if they felt the UFC fighting 9 taker here. If you continue onto page 19 near
10 techniques were creeping into the NHL game. 10 the bottom where it status Stan Bowman, second
11 Mr. Campbell remarked that these were the only 11 paragraph from the bottom.
12 examples he had of anything resembling these 12 A. Yeah.
13 tactics and he did not feel this was a major 13 Q. Who's Stan Bowman?
14 issue." 14 A. The general manager of Chicago.
15 Did I read that correctly? 15 MR. GOLDFEIN: I'm going to -- in
16 A. Yes. 16 light of your questioning, I'm going to
17 Q. Would it be an issue if players 17 object to your question to the extent
18 were employing UFC fighting techniques? 18 you said that these are minutes of the
19 A. Yes, I think it would be. 19 meeting although they're not signed.
20 Q. Why? 20 MR. GUDMUNDSON: Okay.
21 A. Because like, first off, I assume 21 MR. GOLDFEIN: I have a
22 a player that has training with UFC fighting 22 conditional objection to the document if
23 techniques, fighting in an arena where players 23 that's how you characterized them. And
24 don't, would have an edge. And this was like 24 a lack of foundation.
25 a forearm to the head, which would be far more 25 Q. Okay. So here, the second

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1 paragraph from the bottom on page 19, it says: 1 MR. GUDMUNDSON: Okay. And I'm
2 "Stan Bowman stated that a simple solution 2 just going to make a record. We were --
3 would be to make any illegal hit when the 3 Plaintiffs were vehemently to the
4 initial contact was to the head." 4 pre-disclosure of exhibits in this case
5 Did I read that correctly? 5 and only relented with a court order
6 A. Yeah. 6 that forced us to do so. And now you
7 Q. Was that illegal at this time on 7 want to use a document that's not been
8 the ice? 8 pre-produced to us?
9 A. Sorry. Was what illegal on the 9 MR. GOLDFEIN: Because I believe
10 ice? 10 you created a misleading record when you
11 Q. Any hit illegal when the initial 11 have this document in the document
12 contact was to the head. 12 production and which clearly shows that
13 A. No. 13 the union did agree to the
14 Q. Is it illegal now in the NHL? 14 implementation of Rule 48 in March of
15 A. No. 15 2010 in a written document given to --
16 Q. Is it penalized? 16 sent to the League showing that they did
17 A. No. If it's not a targeted hit 17 agree to the implementation of the rule
18 you can make initial contact with the head. 18 before it was implemented.
19 Q. Okay. Go on to the next page at 19 MR. GUDMUNDSON: Okay. I'm going
20 the top if you will, please. There's an entry 20 to -- go ahead and ask your questions.
21 that says: "Brian Burke stated that he would 21 You can ask whatever question you want
22 not support Stan Bowman's proposal, commenting 22 about the document.
23 that physical play was an important and 23 MR. GOLDFEIN: No. I've stated my
24 entertaining part of hockey and that he was 24 record. I don't need to ask it. We'll
25 only interested in legislating hits on players 25 cover it in another deposition with
Page 387 Page 389

1 who did not have a chance." 1 another witness.
2 Did I read that correctly? 2 MR. GUDMUNDSON: Okay. Well, just
3 A. Yeah. 3 let the record reflect that I'll allow
4 Q. Is it safe to say that Stan 4 you to ask whatever questions you want
5 Bowman's proposal did not ever get approved? 5 about it. And I don't agree that that
6 A. It did not get approved. 6 that's a good policy to pre-disclose.
7 Q. Okay. 7 We've got a court order that requires us
8 MR. GOLDFEIN: Are we over time 8 to.
9 now? 9 MR. GOLDFEIN: Well, we would have
10 THE VIDEOGRAPHER: Yeah. 6:01. 10 pre-disclosed it had I known you were
11 MR. GUDMUNDSON: 6:01. I guess 11 going to ask certain questions, which
12 that's it. 12 clearly were misleading of the record in
13 MR. GOLDFEIN: I have a document 13 connection with the production of
14 that I want to use in light of your 14 documents in the case but you've had
15 questioning that is not a document that 15 this document. There's no question
16 you notified us about. 16 you've had the document.
17 MR. GUDMUNDSON: I'm going to 17 MR. GUDMUNDSON: Does it have Mr.
18 object to it and you're not going to ask 18 Burke's name on it?
19 about it then. 19 MR. GOLDFEIN: Mr. Burke's name
20 MR. GOLDFEIN: Well, I'll proffer 20 was not on many of the documents you've
21 the document into the record then. And 21 asked about today, Counsel.
22 I'll simply note what I was going to ask 22 MR. GUDMUNDSON: I don't agree
23 about this document has been used in the 23 with that.
24 case already I believe at Commissioner 24 MR. GOLDFEIN: Yes. There were a
25 Bettman's deposition. 25 number of these exhibits. His name --

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1 you asked about e-mails between Colie 1 documents. I asked Mr. Burke some
2 Campbell and the Commissioner and 2 questions. But you know what? Let's
3 others. You've asked about documents 3 stop the colloquy. Let's get Mr. Burke
4 that he had nothing to do with. 4 on his way.
5 MR. GUDMUNDSON: Well, there may 5 MR. GOLDFEIN: Well, you asked the
6 have been some, but not a lot. But, as 6 questions and you have the documents.
7 I said -- 7 These documents have been inquired in
8 MR. GOLDFEIN: Well, you're 8 another deposition and there's been
9 quarrelling with many. I'll give the 9 other testimony about the
10 Bates number of the document if you'd 10 implementation. If you purposely want
11 like and you can go look at it yourself. 11 to create a misleading record that'll be
12 MR. GUDMUNDSON: Well, you should 12 for the jury to determine.
13 if you want to introduce it as an 13 MR. GUDMUNDSON: If you're
14 exhibit in this. 14 accusing me of misleading and breaches
15 MR. GOLDFEIN: But you're 15 of ethics here, Mr. Goldfein --
16 objecting to it, so I'm not going to 16 MR. GOLDFEIN: I'm not accusing
17 disturb our rule about pre-disclosure. 17 you of anything. I'm simply saying
18 And I'll note also you were a day late 18 there was a document that's in the
19 with pre-disclosures. 19 record that indicates that union did, in
20 MR. GUDMUNDSON: In what way? It 20 fact, agree to the implementation of the
21 was due Wednesday. 21 rule. They reserved their rights for
22 MR. GOLDFEIN: Four business days 22 future seasons about its implementation.
23 ahead. You sent them after the close of 23 There was a debate with the League over
24 business hours on Wednesday I believe. 24 that. But they did agree and
25 MR. GUDMUNDSON: I'm sorry. What 25 acknowledge that they agreed to the
Page 391 Page 393

1 time were they sent? 1 implementation of the rule. The
2 MR. GOLDFEIN: Late in the 2 document says: "We are pleased that the
3 evening. 3 NHLPA has" -- I'm sorry. "I am writing
4 MR. GUDMUNDSON: No. 5:05 Central 4 to inform you that the NHLPA agrees to
5 time where the case is pending in that 5 the implementation of the supplemental
6 jurisdiction. 6 discipline this season in instances
7 Well, we can resolve that later, 7 where a player has committed a lateral,
8 but if there's an objection to be made 8 back pressure, or blind-side hit to an
9 about that, I'm glad you made your 9 opponent where the head is targeted
10 objection. We can resolve it. Let's 10 and/or the principal point of conduct 'a
11 not keep Mr. Burke here any longer than 11 blind-side hit'."
12 he has to. 12 And then he goes on to state other
13 MR. GOLDFEIN: All right. Well, 13 reasons. That document is NHL204662.
14 for the record, the document so that you 14 MR. GUDMUNDSON: What is the date
15 can go look at it the next time when you 15 on that document?
16 take a deposition maybe you'll ask 16 MR. GOLDFEIN: The date on that
17 accurate questions is NHL206468. I'm 17 document is March 25th, 2010.
18 sorry. NHL20648 -- no, 4661. And I 18 MR. GUDMUNDSON: Okay.
19 don't need to ask him because the 19 MR. GOLDFEIN: Okay?
20 document speaks for itself. 20 MR. GUDMUNDSON: And we will be
21 MR. GUDMUNDSON: Okay. And so 21 presenting this fine record to make sure
22 there is no record that anything I've 22 that we have our arguments against the
23 asked is inaccurate in any way. And you 23 introduction of documents prior to the
24 clearly were also wrong about the 24 deposition.
25 documents. I didn't create the 25 Thank you very much for that, Mr.

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Page 394
1 Goldfein.
2 Do you have anything further for
3 the witness?
4 MR. GOLDFEIN: No.
5 THE VIDEOGRAPHER: The time is
6 5:21. This is the conclusion of the
7 today's deposition. August 19, 2015.
8 (Time Noted: 5:21 p.m.)
9
10
11
12
13
14
15
16
17
18
19 ____________________
20 BRIAN BURKE
21
22 Subscribed and sworn to before me
23 this ___ day of __________, 2015.
24
25 _________________________________
Page 395
1 CERTIFICATE
2 STATE OF NEW YORK )
3 : ss.
4 COUNTY OF NEW YORK )
5 I, FRANCIS X. FREDERICK, a
6 Notary Public within and for the State
7 of New York, do hereby certify:
8 That BRIAN BURKE, the witness
9 whose deposition is hereinbefore set
10 forth, was duly sworn by me and that
11 such deposition is a true record of
12 the testimony given by the witness.
13 I further certify that I am not
14 related to any of the parties to this
15 action by blood or marriage, and that
16 I am in no way interested in the
17 outcome of this matter.
18 IN WITNESS WHEREOF, I have
19 hereunto set my hand this 31st day of
20 August, 2015.
21
22 _____________________
23 FRANCIS X. FREDERICK
24
25

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1 NAME OF CASE: NATIONAL HOCKEY LEAGUE
2 CONCUSSION LITIGATION
3 DATE OF DEPOSITION: AUGUST 19, 2015
4 NAME OF WITNESS: BRIAN BURKE
5 Reason codes:
1. To clarify the record.
6 2. To conform to the facts.
3. To correct transcription errors.
7 Page _______ Line ______ Reason _____
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8
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23
____________________________
24
BRIAN BURKE
25

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126:10 255:9 320:11 169:12 211:15 344:6

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273:24 Commonw... complaint 232:16 89:23 91:10 278:24
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123:22 community 167:6 concussed 131:24 332:11

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confusion consult 93:2 191:25 convinced 118:17 333:19
33:25 consulted 264:25 300:9 128:16,20 335:12
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82:9 137:11 362:23 297:22 198:15 134:6,8,9 338:12
355:8 consulting 324:13 244:10 134:14,15 339:18,19
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connection 210:12 109:21 cooperation 146:13,15 373:2,7,13
13:7,8,9 contact 121:3,18 355:11 151:17,19 373:15,23
18:6 160:3 102:18 187:9 coordinates 153:15 373:24
161:9 202:2 119:11 272:17 103:21 155:1 382:24
304:10,22 124:16 300:6 303:1 coordinators 159:21 396:6
305:14,15 125:4,6,8 318:22 33:18 164:13 correction
307:10 125:23,23 374:25 copies 359:9 170:7,8 174:24
389:13 126:1,8,19 385:9 copy 106:13 172:12 310:12
consensus 127:6,14 continued 316:7 175:11 correctly
329:12 128:20 32:4 62:24 365:22 176:20,21 79:14 88:19
338:25 130:17,22 continues corner 137:5 177:13 95:24 96:18
381:12 131:8,13,23 384:2 143:8 179:3 181:4 97:10
consent 132:2,25,25 continuing 207:24 192:16 108:16
177:20 133:2,4,11 95:17 261:2 267:3 193:12 109:23
225:20 133:14,19 continuity 268:15 195:9 124:1
226:11,13 133:20,22 58:2 269:18,24 196:16 130:19
consented 133:22 contract 19:2 270:19 197:2 144:14
178:14 136:23 19:13 51:13 368:12 212:20 148:6
226:15 137:4,7 56:17 62:25 corporate 214:5 149:16
consequen... 138:6 150:2 contracts 27:5,22 224:20,23 153:14
302:20 165:8 30:22,23 63:23 224:24 154:25
consider 166:14,14 32:5 283:14 correct 16:4 225:25 155:15,23
295:16 167:2 contractually 18:17 19:10 228:4,5 156:3
363:25 189:11,22 57:18 19:23 23:3 236:2,3,6 164:17
364:2 382:5 190:21,22 contrast 25:6,7 236:10 168:25
considerable 191:24 129:3 31:11 41:11 237:8,21 171:21,22
48:21 60:19 194:5 contribute 41:19 46:13 242:13 181:10
considered 198:12,12 258:9 46:16,17 251:6 182:13
233:4 204:20 contribution 50:23 51:10 255:23 183:1
247:19 206:24 258:20 51:11,22 273:2 187:16
considering 207:3,11 contributions 52:25 54:5 277:25 189:16
60:17 208:2,5 258:22 54:6 55:21 278:11,22 192:3

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283:9 counted 163:13 207:24 159:3 235:14
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299:11 COUNTY 235:16 309:2 363:9 296:5,24
302:24 395:4 242:22 crowd 281:9 365:11,22 309:13
303:6 couple 21:13 252:5 259:9 crushing 374:2 310:4
308:10 21:16 25:24 261:13 137:6 Daly's 92:24 316:21
311:1 58:9 63:3 286:25 cry 378:10 damage 323:16
318:20 67:18 71:9 296:7 CSR 1:24 200:8 201:6 328:8,21
319:3 325:4 88:11 100:7 309:15 CTE 153:13 201:19,21 336:17
326:1 102:16 316:23 153:16 Dan 12:14 348:18
329:16 108:4 123:1 323:18 154:13 dance 140:18 357:24
330:1 135:4 328:10 156:8,13,21 287:24 358:16
331:12 140:11 336:19 159:18 289:17 371:9 375:5
332:16 154:9 348:20 162:21 DANE 2:9 380:17
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382:25 298:6 2005/6 54:4 2015 1:14 3:07 286:14 427 307:21
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Confidential Pursuant to Protective Order - Deposition of Brian Burke - 8/19/2015

In Re: National Hockey League Players' Concussion Injury Litigation

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