Can Shawn Thornton win his 15-game suspension appeal?

Puck Daddy

Shawn Thornton of the Boston Bruins and the NHLPA have announced they’ll appeal his 15-game suspension from the NHL; and while there’s a cacophony of critics claiming he should shut up and swallow this punishment without protest, appealing this thing is a good thing for he NHL’s supplemental discipline process.

First off: It’s not a conflict of interest that the NHLPA represents both Thornton and the player he assaulted, Brooks Orpik. They represent all players, and testing the system is beneficial to those players should they ever end up in Thornton’s position. (As in having a massive suspension from the NHL, not being a momentary felon.)

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As for the appeal, bring it on.

Everyone lamented the fact that Gary Bettman used to be the check and balance on the guy Gary Bettman hired to dish out suspensions. The NHLPA fought for an independent arbitrator in the CBA and won the right to have suspensions of six games or greater rise above Bettman’s rubber stamp and be tested by a higher authority.

Ensuring that the NHL’s argument, and its supplemental discipline system is logical, valid and on-point isn’t a bad thing. Brendan Shanahan told me his Department of Player Safety welcomes the scrutiny; and as absurd as that sounds, the fact is that an independent review of their rulings could just as easily cement their legality as they could find them excessive.

It could smack back the NHLPA as easily as it could stiffen the union’s resolve.

Does Thornton have a case? That’s the issue.

Bettman first needs to uphold the initial suspension. We’ve already seen him do that with Patrick Kaleta’s 10-game ban, and he was like a legal assassin in his ruling, taking out every counterargument and building an airtight case that Kaleta was a reckless repeat offender that more than earned his discipline. It was so scathing that any further appeal seemed nonsensical.

Kaleta was a piñata. Thornton’s actions were indefensible, but his suspension isn’t based on that kind of rap sheet, which is stunningly clean for a guy who plays with such a physical edge.

As Eric Duhatschek put it:

He is not considered a cheap-shot artist. Even those on the other side, such as Penguins general manager Ray Shero, acknowledge that.

“Shawn Thornton has been a player throughout his career, through the minors and the NHL, I believe, that has been an honest player,” Shero said last Saturday. “He’s never been suspended before; plays a tough role. I don’t think what happened is what he intended to happen.”

Moreover, Thornton issued an immediate and what sounded like a heartfelt mea culpa – as opposed to the empty, unapologetic apologies some players issue because they feel they have to in the immediate aftermath of doing something stupid.

Now, immediate contrition is not likely something the arbitrator will weight heavily on assessing the NHL’s sentence. The NHLPA’s argument is going to be that 15 games is excessive, and that the suspension needs to be reduced. The NHL’s defense will be that the act was heinous enough to warrant the ban, and that there are precedents to support such a ban.

Eric Macramalla, TSN’s legal analyst, argued that Thornton doesn’t have a case based on those precedents, but I don’t necessarily see his examples as watertight as he portrays them.

His examples, and my context:

• Chris Simon (2007): 30 games for stomping on the leg of Jarko Ruutu, which came after his suspension for cross-checking Ryan Hollweg to the head.

• Jesse Boulerice (2007): 25 games for a cross-check to the face of Ryan Kesler, which followed Steve Downie’s 20-game suspension and an assault charge Boulerice earned in his junior hockey days for an on-ice incident.

• Raffi Torres (2012): 25 games for his hit on Marian Hossa, which came three run-ins with the Department of Player Safety in three years.

• Marty McSorley (2000): 23 games for swinging his stick at Donald Brashear's head, and had previously been suspended.

• Dale Hunter (1993): 21 games for his hit on Pierre Turgeon, and had been previously suspended four games for a “vicious” hit in 1991.

• Brad May (2000): 20 games for a slash to the head of Steve Heinze; I couldn’t find a previous suspension for him. Not even for the sucker punch on Ulf.

• Steve Downie (2007): 20 games for launching himself at the head of Dean McAmmond. This was before his regular-season NHL debut, but he was “suspended in junior hockey for fighting with a teammate and he later punched an opponent in the face after a faceoff.”

• Todd Bertuzzi (2004): 20 games for his assault on Steve Moore, and had been previously suspended.

• Dave Brown (1987): 15 games for his cross-check to Tomas Sandstrom's face, and, well, was Dave Brown. He got five games for attacking Sandstrom earlier in the season.

• Tony Granato (1994): 15 games for slashing Pittsburgh's Neil Wilkinson, and had no priors.

• Wilf Paiement (1978): 15 games for swinging his stick and hitting Dennis Polonich in the face. Couldn’t find any reference to another suspension, but we’ll just go ahead and assume there might have been one.

As you can see, nearly every player involved ran afoul of the NHL (or had the reputation for thuggery before arriving there).

As you can also see, seven of the 11 examples Macramalla provided are equipment-related assaults. Unless you believe a glove is comparable to a stick or a skate blade, the NHLPA could argue that the punishments for these crimes is greater when it’s a cross-check to the face rather than a gloved punch.

The fact is that outside of Torres, this is the largest suspension dished out by the Department of Player Safety since its inception. That’s important because it was created, in part, as a response to the concussion crisis in the NHL. As Macramalla wrote, that could also play into the NHL’s favor in fighting the appeal:

One more thing: the league could argue that times have changed. It is now generally accepted that players can suffer irreversible brain damage as a result of blows to the head, and as a result, the league must take active and decisive steps to safeguard the brains of its players. Part of that is imposing sanctions that are designed to strongly discourage behavior that threatens the long-term health of its players. Failing to firmly discipline players in these circumstances puts all players at risk at a most sensitive time for sports. So relying, in part, on deterrence may assist the NHL's position.

It’s an interesting argument, as it speaks to the political nature of the suspension in this climate – the concussion lawsuit obviously being a potential game-changer for supplemental discipline – rather than any concrete examples that support its duration.

Don’t confuse my supporting Thornton’s appeal as supporting his actions, because I think 15 games is appropriate for someone that completely embarrassed himself and the League in assaulting another player.

But I’m intrigued any time someone takes on Bettman, who is one of the most bullheaded and cunning opponent one can take on. (Ask the NHLPA and Jim Balsillie.) And I’m intrigued to see how an independent arbitrator interprets the NHL’s logic, and whether it’s reinforced or proven to be more politics than precedence.

Even if he gets a game or two shaved off the ban, it’ll still be a significant rebuke of his actions, which have rendered his legacy as exemplar of “The Code” completely worthless. Which, knowing Thornton, hurts as much as any salary lost during his suspension.

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