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Instant Legal Analysis: Thornton's Appeal

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Eric Macramalla
12/16/2013 5:49:22 PM
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Bruins forward Shawn Thornton will be appealing his 15-game suspension handed down by the National Hockey League. The NHL suspended Thornton for his attack on Penguins defenceman Brooks Orpik. After the whistle, Thornton skated the length of the ice, pulled Orpik to the ice from behind and punched him in the face several times. Orpik suffered a concussion and was taken to hospital.
 
The Appeal Process
 
As a first step, Thornton will appeal the suspension to Commissioner Gary Bettman. He hears all appeals on league discipline.

Since the suspension exceeds five games, Bettman is required to have an in-person hearing for Thornton. Since Thornton was at the NHL office last week for his disciplinary hearing, he should know his way around by now.
 
The Collective Bargaining Agreement (CBA) provides that "the Commissioner shall endeavor to hear all appeals on an expedited basis and will determine whether the decision" is supported by clear and convincing  evidence. So Bettman will get this done quickly and will assess whether the suspension makes sense based on the circumstances.
 
Thornton should expect to fail on appeal to Bettman. The suspension was handed down by the Director of Player Safety Brendan Shanahan. However, given the complex legal implications of this case, particularly in light of the concussion lawsuits, the suspension was very likely a group effort. So the suspension wasn't a Shanahan decision as much as it was a league decision issued through Shanahan. As a result, it's unlikely Bettman will reduce the suspension. Frankly, reductions by Bettman are unlikely in most circumstances. He runs the league so he won't contradict himself.
 
Indeed, the NHLPA has probably told Thornton the prospects of success are bleak. And this brings us to the next stage in the appeal process.
 
Appeal Number 2
 
It doesn't end with Bettman. Since the suspension exceeds five games, the CBA gives Thornton the right to appeal Bettman's decision to an independent arbitrator. This wasn't around in the old CBA and is brand new, thanks to the NHLPA's negotiations during the lockout.
 
Thornton will have seven days to appeal Bettman's decision to the arbitrator (who is described as a "Neutral Discipline Arbitrator" in the CBA). There will once again be an in-person hearing, and while the CBA doesn't say when it must occur, the arbitrator needs to hear it on an "expedited basis". So again, relatively quickly.
 
The arbitrator will consider the length of the suspension and whether it's appropriate. That determination will be made by examining things like the incident, the league's past practice, the evidence and the surrounding circumstances.
 
The arbitrator has broad powers. The CBA gives the arbitrator "full remedial authority", which means he can reduce the suspension, leave it as is, or even increase it. It's unlikely, though, the suspension would ever be increased.
 
If Thornton is unhappy with the decision of the arbitrator, his only recourse would be to challenge the ruling in court. However, a judge will not interfere with the arbitrator's decision unless it's completely outrageous. Effectively, then, you should consider the arbitrator's decision final.
 
To be clear, Thornton doesn't have to appeal Bettman's ruling to the arbitrator. If he wants, after the Commissioner rules on his case, he can decide to stop the appeal process and serve out what is left of his suspension.
 
As I wrote here, Thornton's prospects of success on appeal are low, given the NHL's past practice when it comes to these types of incidents. As well, the NHL may be able to make a compelling case that this type of suspension represents an important deterrent for on-ice behaviour that puts players at risk for concussions and the irreversible brain damage that may flow from head shots.
 
However, merits aside, I also noted that we could still see an appeal. Since independent arbitrators are new, the NHLPA may want to start building precedents to help guide them in future cases. As well, the NHLPA needs to show that it won't roll over when it comes to defending its players and that it is prepared to dig in and fight. So while this case does not present a high likelihood of success for Thornton, the NHLPA sees value in taking a stand. And as it should.
 
As for Brooks Orpik, he may not be too happy with the NHLPA defending his attacker. Still, the NHLPA may draw the fine distinction that the appeal is not adverse to Orpik, but rather adverse to the NHL and its decision. So the Union isn't technically acting against one of its own, but instead acting on behalf of one of its own.
 
That is a distinction that may not sit well with Orpik. However, that's the nature of the NHLPA beast.

Shawn Thornton (Photo: Brian Babineau/NHLI via Getty Images)

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(Photo: Brian Babineau/NHLI via Getty Images)
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