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Legal Look: Should Bruins F Thornton appeal his suspension?

Eric Macramalla, TSN Legal Analyst

12/15/2013 5:51:36 PM

The NHL has suspended Bruins forward Shawn Thornton for 15 games 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 off the ice on a stretcher and sent to hospital.
 
"This cannot be described as a hockey play that went bad, nor do we consider this a spontaneous reaction to an incident that just occurred," NHL director of player safety Brendan Shanahan said.
 
The NHL described it as an "act of retribution."
 
After he was suspended, his people, which include the NHLPA and his lawyer/agent, issued the following statement:
 
"I am aware of today's ruling by the NHL department of player safety. I will be consulting with the Bruins, my representation and the NHLPA about next steps, and will be in a position to address the matter publicly after speaking with those parties."
 
Translation: Thornton and the NHLPA are assessing the merits of an appeal and whether he stands a reasonable chance of getting his suspension reduced.
 
Bruins president Cam Neely believes that the suspension is too long.
 
"Higher than I expected and higher than I think is warranted…We've had our fair share of players hurt badly by concussions. I don't think anyone's gotten a 15-game suspension out of those. Thornton is a guy who plays the role he plays and has never had any suspensions or issues. It comes down a little harsh for me" Neely declared.
 
Timeline
 
Thornton has 48 hours to appeal his suspension as per the collective bargaining agreement. That takes us to Monday. That appeal goes to the Commissioner Gary Bettman. Since the suspension is over five games, Bettman will need to conduct an in-person hearing.
 
Assuming Bettman upholds Thornton's suspension, which is a near certainty, Thornton will have seven days to appeal the decision to an independent arbitrator. The arbitrator will also have to hold an in-person hearing.
 
If Thornton does appeal, the NHLPA will argue that the length of the suspension is not in keeping with the league's practice for similar incidents. Effectively, it will be argued that the punishment is disproportionately long.
 
Could Thornton Win An Appeal?
 
Should the case be appealed to an arbitrator, Thornton will have a difficult time getting the suspension reduced. Ultimately, the appeal is unlikely to meet with success.
 
Why?
 
The league should be able to demonstrate that the length of the suspension is aligned with its past practice when it comes to incidents where one player intentionally targets and assaults another player in a manner that cannot be considered contact that is incidental to the game. Here's just a sample of suspensions dating back to 1978 that the NHL could rely on to show that the Thornton suspension makes sense:
 
Chris Simon (2007): 30 games for stomping on the leg of Jarko Ruutu
Jesse Boulerice (2007): 25 games for a cross-check to the face of Ryan Kesler
Raffi Torres (2012): 25 games for his hit on Marian Hossa
Marty McSorley (2000): 23 games for swinging his stick at Donald Brashear's head
Dale Hunter (1993): 21 games for his hit on Pierre Turgeon
Brad May (2000): 20 games for a slash to the head of Steve Heinze
Steve Downie (2007): 20 games for launching himself at the head of Dean McAmmond
Todd Bertuzzi (2004): 20 games for his assault on Steve Moore
Dave Brown (1987): 15 games for his cross-check to Tomas Sandstrom's face
Tony Granato (1994): 15 games for slashing Pittsburgh's Neil Wilkinson
Wilf Paiement (1978): 15 games for swinging his stick and hitting Dennis Polonich in the face
 
There are certainly arguments that could be relied on to distinguish certain of these incidents from the Thornton incident. That being said, however, all share a common element: an intent to harm together with contact that falls squarely outside the scope of what is considered acceptable contact in the game of hockey. In these cases, the length of suspensions has ranged from 15 to 30 games.
 
The league will also be able to rely on an extensive history of lengthy suspensions. The NHL has been suspending players for long stretches for decades. Thornton' suspension, the league will argue, is by no means unique. Rather, the length fits in nicely with previous cases and is wholly supported by precedent.
 
In fact, based upon the league's history of suspensions and the egregious nature of the incident, the NHL may well be in a position to argue that it exercised restraint in suspending Thornton. The suspension, the league may contend, could have been longer but was reduced on account of Thornton having no priors.
 
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.
 
Merits aside, we may still see an appeal. The option to appeal a suspension to an independent arbitrator is brand new having been introduced in the latest CBA. So far, no case has been appealed to an arbitrator. The NHLPA may want to appeal the decision to start building case law and precedents for future cases. So while this case does not present a high likelihood of success for Thornton, the NHLPA may want a decision from an arbitrator to help guide it on future cases. Indeed, there is value in precedents.
 
Ultimately, given the NHL's past practice when it comes to assault on the ice, Thornton's suspension is on the lighter side or at the very least eminently reasonable. So I don't see an appeal unless the NHLPA wants to start building precedents. The problem with that, however, is that this isn't a great case to test the independent arbitrator waters since Thornton is very likely on the losing side of the case.