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Legal Look: Why the delay on the Thornton suspension?

Eric Macramalla, TSN Legal Analyst

12/12/2013 11:47:35 AM

Many have asked: why on earth is it taking so long to announce Shawn Thornton's suspension?

On December 7, Thornton pulled Brooks Orpik to the ice from behind and punched him a few times in the face for good measure. Orpik was taken off on a stretcher, and having suffered a concussion, hasn't played since the incident. The scene was reminiscent of Tie Domi on Ulf Samuelsson, and to a lesser extent Marty McSorley and Todd Bertuzzi. Thornton's hearing will be Friday, almost a full week after the incident.

It's not a surprise this one is taking time. The weight of the NFL concussion lawsuits, the recently filed NHL concussion class action and the Boogaard lawsuit are likely weighing heavily on the decision making process. The league may be looking at this one very carefully to ensure they send the right message, not only to players, parents and fans, but also to potential jurors. And that message is this: we are taking all reasonable steps to ensure the safety of our players. The league will want to be seen as being proactive when it comes to protecting the brains of players, and that means firmly addressing unnecessary risk on the ice. Hockey is an inherently dangerous sport and that will never change. Still, contact that is not part of the game will be scrutinized.

It seems unlikely that NHL vice-president of player safety Brendan Shanahan will be working alone on this suspension. This will be a group effort with lawyers intimately involved. This incident raises complex legal issues and will be considered with care. Ultimately, the suspension is less a hockey decision and more a legal decision.

So whatever the ruling by the NHL, the assumption needs to be that the league will actively consider the legal angles before making its decision. This is an important time for the league. The discussion about violence in sports has been rising over the past few years as the public becomes more aware of the potential long-term impact of headshots. Indeed, there seems to be a trend emerging: concerns over violence in sports have become part of the narrative of the game of hockey and they don't seem to be going away anytime soon. And, in part, those concerns are now being expressed in lawsuits.

A Crime?

One more question that is raised: were Thornton's actions a crime?

The answer lies in the issue of consent, which is your starting point when assessing whether a hit on the ice is elevated to a crime.

In hockey, when a player steps on the ice, he is agreeing to some form of bodily contact and the risk of injury that flows from that contact. Hockey is understood to be an inherently violent game and injuries happen. At law, this principle of consent is called voluntary assumption of risk. Players assume risk when playing and can't turn around and sue for the harm that comes from that type of fair and expected contact.

However, a distinction should be made. Players are only consenting incidental contact (or contact that is part of the game like body checks). Players are not consenting to acts that are outside the scope of what is acceptable in the game. When that happens, you start asking if a crime has occurred. We did that in cases like Bertuzzi on Moore, McSorley on Brashear and Alex Perezhogin on Garrett Stafford. And we are doing that with Thornton on Orpik.

It's tough to argue that Thornton's actions constitute incidental contact. Pulling Orpik to the ice from behind and punching him repeatedly in the face is not contact that is accepted as part of the game. So to characterize the incident as an assault is not unreasonable. And just because it happened on the ice doesn't change anything. Assault is assault is assault.

That being said, the incident wasn't bad enough to warrant charges and that's why we didn't see any materialize.

Finally, as far as length of the suspension, my best guess is 12 to 15 games. Anything north of 15 games will signal an acknowledgement that times have changed.