NHL

Instant Legal Analysis: Bettman upholds Thornton suspension

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Eric Macramalla, TSN Legal Analyst
12/24/2013 5:29:19 PM
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In preserving Bruins forward Shawn Thornton's 15 game suspension on appeal, Commissioner Gary Bettman concluded that the attack on Penguins defenceman Brooks Orpik was "a bad act with a bad result, and neither will be tolerated in our game."

Bettman very clearly confirms that protecting the brains of players is of paramount importance, and decisive action will be taken to discourage excessive and unnecessary force that may result in irreversible brain damage.

Thornton will now have seven days to appeal Bettman's decision to an independent arbitrator. This is brand new under the CBA and has never been done. So if we do see an appeal, we will break new ground (and/or ice).

The Hearing: Who Was There?

The hearing was held at the law firm Proskauer Rose LLP. That's the firm that acted for the NHL during the lockout. Very good law firm.

Apart from Thornton appearing at the hearing, his agent Anton Thun, NHLPA representatives Roman Stoykewych, David Sinclair and Maria Dennis, and Boston General Manager Peter Chiarelli were all in attendance. Thun and Chiarelli were called by the Union to testify.

On the NHL side were members of the League office, including Deputy Commissioner Bill Daly, David Zimmerman, Julie Grand and Brendan Shanahan (who was called to testify), as well as Joseph Baumgarten from Proskauer Rose.

While Thornton has an agent, the NHLPA handles the hearing. The agent can help with arguments, but ultimately the Union is in charge of the appeal and does the talking.

NHLPA: What They Argued

The NHLPA did not dispute that a suspension was warranted, but rather argued that the suspension was too long. So the NHLPA focused on length and not whether a wrong was committed. In fact, at the hearing, the NHLPA and Thornton acknowledged that the act was "quite serious", "harmful", and resulted in "significant" injury.

Bettman writes that the NHLPA was aiming for a suspension closer to 10 to 12 games. In doing so, the Union relied on the league's past practice for similar incidents, Thornton's clean record and the act lacking premeditation. Overall, the NHLPA argued that the "punishment was excessive."

Bettman Disagrees

In preserving the length of the suspension, Bettman relied heavily on the intentional nature of the act together with its "highly dangerous nature" and the "extent of the injury."

As per the NHL CBA, the league considers a number of factors when determining the length of a suspension, including the following: (1) the excessive and unnecessary nature of the act, (2) the injury sustained, (3) whether the player has a rap sheet or is a repeat offender, and (4) the circumstances of the game. The league can also consider any other relevant surrounding circumstances.

Bettman ruled that Thornton engaged in intentionally excessive force. He skated the length of the ice, slew footed Orpik, dragged him to the ice from behind and punched him multiple times in the face. Orpik, Bettman writes, "never had a chance to fairly confront his opponent, much less an opportunity to defend himself."

As well, Orpik's injury was also key in maintaining the suspension. Bettman noted that there was still no "definitive date for his return" and that there is "uncertainty as to his future condition."

Bettman also ruled that the act constituted "retribution" for Orpik declining Thornton's invitation to fight after Orpik's hit on Louis Eriksson. For the Commissioner, that also supported upholding the suspension.

The fact that Thornton had no prior history of suspensions was recognized by Bettman. Indeed, the Commissioner expressed that it was "certainly possible" to argue for a more "severe punishment." So it looks like Thornton's clean record may have resulted in a shorter suspension.

Bettman also relied on one more key factor: the human brain.

It is recognized that players may suffer irreversible brain damage as a result of blows to the head. Consequently, the league must take active and decisive steps to safeguard the brains of its players. That includes imposing punishments that are designed to strongly discourage behavior that threatens the long-term health of its players. The league would argue that failing to firmly discipline players puts all players at risk. Hockey is an inherently dangerous sport and that will never change. Still, contact that is not part of the game will be scrutinized.

Indeed, the 200 plus NFL concussion lawsuits, the NHL class action concussion lawsuit and the Derek Boogaard lawsuit weighed heavily on the decision making process. The league simply cannot be seen as soft on brain damage with this mass of litigation gathering around sports. So the legal side of this case was inescapably important.

Some have argued that the nature of Thornton's act just doesn't match up with past lengthy suspensions because Thornton used his glove to punish Orpik rather than his stick or skate. This type of argument is a red herring and ignores the bigger issue at play: it's not how the harm is delivered but rather what harm is inflicted.

Times have changed and penalties must be aligned with evolving sensibilities. Indeed, Bettman wrote in his Decision that a player "who today blatantly flouts the rules in a manner that causes a head injury can and should expect to be severely disciplined."

Why So Long For Bettman Decision?

Thornton's hearing was on December 20. So it took 4 days for the Commissioner to issue his decision. In part, a reason for the delay was that the NHL wanted to get the decision just right given the possibility the case could be appealed to an independent arbitrator. The NHL wanted to make sure, in part, that its reasons were well-reasoned, considered and thoughtful.

So What's The Takeway?

The extent of the harm delivered together with the weight of the concussion lawsuits and evolving sensibilities conspired to preserve Thornton's suspension. Bettman's decision was not only predictable, but it was also prudent and ultimately correct.

And for these reasons, and as I wrote here, Thornton's chances of success on appeal to an independent arbitrator are bleak.

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

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(Photo: Brian Babineau/NHLI via Getty Images)
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