In the NHL's mind, the system works.
When commissioner Gary Bettman suspended Raffi Torres for 21 games on Monday, he took the rare step of altering a disciplinary ruling on appeal.
The timing is obviously interesting. Bettman did it as the league and the NHL Players' Association began labor negotiations on Friday, and the supplemental discipline process – particularly the appeals process – is expected to be an issue this summer.
Was this an olive branch?
Maybe. But if so, this olive branch was still a stick. Bettman whacked Torres essentially the same way NHL disciplinarian Brendan Shanahan intended when he originally suspended Torres for 25 games.
Shanahan wanted Torres gone for at least 20 games and the rest of the playoffs, because he had delivered yet another illegal hit to the head and caused a serious injury.
The Phoenix Coyotes had a maximum of 25 games left to play – and the player Torres concussed, the Chicago Blackhawks' Marian Hossa, also had a maximum of 25 games to miss.
So 25 it was.
But Bettman had the benefit of hindsight on appeal. He knew the Coyotes played 13 more games after Torres was suspended. So he gave him 13 games served, plus eight to be served at the start of next season.
[Related: NHL shortens Raffi Torres suspension following appeal by NHLPA]
Torres missed the playoffs. He still will miss 21 games total. He still has to clean up his act, or he will be judged even more harshly as a repeat offender the next time he throws a hit like that – if the supplemental discipline process remains the same under the next labor agreement, of course.
The main process should remain the same or close to it. If you think there should be an independent arbitrator or a panel to determine discipline, consider three things:
One, for an independent arbitrator to do the job well, he would have to have a similar background to Shanahan's. He would have to have played in the league to understand what really happens on the ice, and if you have played in the league, you are bound to have connections that could be considered potential conflicts of interest. Does it matter if the disciplinarian is paid by the league, the union or both?
Two, there already is a panel. Shanahan has a group of experienced people who study these incidents every day. He consults them before ultimately making his decisions. Disciplinary decisions will always be subjective and controversial, no matter who makes them and how. There can be no black-and-white standard in a shades-of-gray sport.
Three, the buck has to stop somewhere. A panel would complicate the process and obscure accountability, when it needs to be quick and clear. Shanahan explains every suspension via video. He does it to educate, but it also forces him to make his case out in the open. You might disagree, but you know who decided what and why.
The NHLPA has a point about the appeals process, though. All appeals go through Bettman, who hired Shanahan, which calls into question if there is a meaningful appeals process at all. The union could argue a person has more rights fighting a traffic ticket than a player does fighting an NHL suspension.
Which is why the Torres suspension is such an interesting case. It illustrates how the process can work – or at least how it worked this particular time, under these particular circumstances.
[Also: 2012 NHL UFA Tracker]
Under the current collective bargaining agreement – Exhibit 8, Paragraph 3 (f) – a player can ask the commissioner to review a disciplinary ruling. The commissioner "will endeavor to rule promptly on any such appeal." If there is a formal, in-person hearing, he will apply a "de novo" standard of review. That means he will treat it like a new case.
Technically, Bettman didn't reduce the original suspension. He issued his own ruling independently.
At a hearing May 17, Bettman called Shanahan as a witness. He asked him for his rationale for giving Torres 25 games, and the union questioned him as well. Shanahan made two main points:
One, Shanahan and the NHL's department of player safety considered the closest comparable to be the 20-game suspension the Philadelphia Flyers' Steve Downie received in 2007 for hitting the Ottawa Senators' Dean McAmmond, because there were actually multiple infractions on the play and a serious injury.
Torres also had his own history. He was the only player in the league who was disciplined three times in 2011-12 – with a fine, a suspension and now this – and he had delivered the same type of check to the head on multiple previous occasions.
Two, Shanahan and his department felt Torres had forfeited his right to play the rest of the playoffs.
Shanahan considered suspending Torres for the rest of the playoffs, or the rest of the playoffs plus a certain number of games. But what if the Coyotes lasted only three more games? What if they played the maximum number? The swing was too big. He also considered saying Torres was out of the rest of the playoffs and, say, a minimum of 20 games, but then it started to get complicated.
The cleanest, simplest solution was 25 – Downie's 20, plus five to assure Torres would miss the rest of the playoffs. Had the Coyotes had a max of 26 games left, it would have been 26. Had they had a max of 24 left, it would have been 24. Had they had a max of 21 left, it would have been 21.
[Also: Martin Brodeur agrees to two-year deal to remain in New Jersey]
Shanahan suspended Torres on April 21. With the NHLPA's help, Torres appealed based on the length of the suspension May 3. Did Bettman rule promptly enough? Did he need two months because he had a lot on his plate – playoffs, labor, the other Phoenix situation – or did his timing have anything to do with the start of CBA talks? Did his timing have to do with the fact Monday was a Canadian holiday, when key free agents were expected to sign, burying the news? Did the system work, in the NHLPA's mind?
Does the system work? Would an independent arbitrator or a panel be better on appeals? And if so, would there be more appeals, and would they bog down the system?
We'll see how negotiations go, and we'll see Torres back four games sooner than we would have otherwise, whenever next season starts.
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