From the moment the NHL's Department of Player Safety suspended Phoenix Coyotes forward Raffi Torres for 25 games, after his hit put Marian Hossa of the Chicago Blackhawks on a stretcher back in Round 1, Torres made noise about an appeal.
"Regarding the severity of the suspension issued, I will take the next few days to decide whether or not to appeal the decision," he said in a statement.
The next few days became weeks. But on Thursday, Torres and the NHLPA announced they've appealed the suspension on the grounds of its severity, rather than appealing the fact that Torres was suspended in the first place (according to Daren Millard of Sportsnet).
A few procedural things to keep in mind here. First, it's Torres appealing to the NHLPA, who then argues his case. The PA has taken grief for years for defending players who injure other union members when they appeal suspensions. Admittedly, it's an awkward situation, but it's also within Torres's rights as a PA member to expect their help, and it's not the NHLPA initiating this.
Second, the appeal will be heard by the NHL's arbitrator on such matters, as determined by the current Collective Bargaining Agreement. From Exhibit 8, Section 3(f)
"A Player may seek review of a disciplinary determination by the Commissioner, who will endeavor to rule promptly on any such appeal. In cases following a formal, in-person hearing, the Commissioner will apply a "de novo" standard of review.
That would be NHL Commissioner Gary Bettman, who hired the guy who suspended Torres (Brendan Shanahan) and who, in another delicious bit of ironic oddity, is the de facto owner of the team from which Torres is suspended.
So the odds that Torres actually wins this appeal are slim. But that doesn't mean he shouldn't appeal it.
Again, it's not the suspension that Torres is appealing, it's the duration of the suspension. The CBA promises a few things about supplemental discipline in the CBA, and one of the them is that it will be administered in "a swift, effective, and consistent manner."
This is Raffi Torres's suspension history. He's a headhunter, for sure, but he's also someone that never had a double-digit suspension until the Hossa hit. It could be reasonably argued that this incredible escalation in punishment — for a hit others have administered but were not given the same level of suspension for administering — was not consistent with other NHL bans. It's not an air-tight case, but it's a case.
Last month after the suspension, we heard the open-ended nature of the ban was one issue: There's never been a playoff suspension that carried over such a large number of games to the following regular season.
We heard again today from an NHLPA source that the fact the NHL factors preseason games into its suspensions — nine players had preseason games built into their suspensions in the 2011-12 regular season — inflates this Torres suspension to an even larger scale.
With an average of six or seven preseason games played by NHL teams, that pushes it over 30 games for Torres. Plus, losing the preseason puts him at a disadvantage when he does come back from the ban.
Also in consideration: The open-ended nature of the suspension with regard to money lost. The deeper the Coyotes go, the more money Torres keeps; the quicker they're eliminated, the more money Torres loses based on the number of regular-season games he'll miss. (Players don't lose salary for playoff suspensions, because they aren't paid in the playoffs.)
Torres won't win the appeal, but the NHLPA's right in arguing this case. First, because the punishment was way too severe to fit the crime, considering the similar cases and Torres's own history. Second, because the nature of this suspension includes some issues — money lost, the preseason games — that will need clarification in the next CBA.
Mostly, because it puts the focus back on the great inequity of the NHL's supplemental discipline process: That Gary Bettman, rather than an independent arbitrator, has the final say.
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