In Player Safety: Evolution of a Suspension (an educational video posted on nhl.com), NHL senior vice president of player safety Brendan Shanahan emphasizes an “extensive and strictly defined process” for player discipline. Yet, his boss commissioner Gary Bettman has acknowledged, “The [collective bargaining agreement] does not prescribe a formula and the process of assessing discipline for on-ice conduct is not an exact science . . .”
Players are not amused. Joffrey Lupul tweeted, “If someone can explain the decisions on what warrants a suspension and what doesn’t, please let me and the rest of [the] guys know.” Likewise, a columnist for The National Post surmised, “It turns out [Shanahan’s] job is hopeless. His department is assailed from all sides by conflicting interests, unwritten codes, invisible forces, influential objectors, teams less important than other teams . . . he’s basically got no chance.”
To improve transparency, the principles guiding grievance arbitrations in unionized workplaces should be used. Moreover, with arbitration now expressly part of the DPS process, it may need to mesh with labour law. Very briefly, the “extensive and strictly defined process” entails:
1. The incident: Fictitious Anaheim Ducks forward Charlie Conway breaks bad on the ice. Depending on the infraction, a referee may penalize Conway between two minutes and the length of the game.
2. The investigation: The DPS will conduct a preliminary review of the footage and referee reports. Subsequently, it has three options: slap Conway on the wrist, fine him up to $15,000, or suspend him.
3. The hearing: If the DPS is contemplating a suspension for five or less games, a telephone hearing will proceed “as soon as reasonably practicable.” Where there is a potential for six or more games, an in-person or formal hearing is required in which the Ducks, NHLPA, Conway, and his agent may partake.
Prior to the formal hearing, the DPS must provide a statement of the factual allegations including why Conway violated the impugned rule. Additionally, the parties will exchange evidence and witness lists.
4. The decision: The DPS may suspend Conway for an appropriate amount of games based on: the “type of conduct involved,” any “injury to the opposing player,” whether he is a “first or repeat offender,” the “situation of the game,” and “such other factors as may be appropriate in the circumstances.” Unless they are pre-season or playoff games, poor Charlie forfeits his daily pay for the duration of the suspension.
5. The appeal: Conway will have 48 hours to appeal to the commissioner. If the suspension was for six or more games, the commissioner will conduct another formal hearing. His task is to determine whether the suspension was “supported by clear and convincing evidence.”
The 2013 collective bargaining agreement introduced a further appeal to a neutral discipline arbitrator where the commissioner upholds or otherwise issues six or more games. Here, yet another formal hearing is held; the NDA’s standard of review is whether the rule breach and suspension length were “supported by substantial evidence.” This second appeal has yet to occur.
With the advent of a neutral discipline arbitrator, the NHL is shifting towards the law. The following identifies some instances where labour law principles could have supported consistency to the practice, procedure, or result.
Vancouver fans disdainfully recall Duncan Keith’s hit on Daniel Sedin just prior to the 2012 playoffs. In suspending Keith for five games, the DPS found “regardless of Keith’s assertion that the intent on this play was to impede Sedin’s progress as opposed to a retaliation for an earlier hit, Keith’s hit was still dangerous, reckless and caused injury.” Keith phoned into the formal hearing, waiving his right to attend. If this was in grievance arbitration, without being able to observe Keith’s frankness and candour, an arbitrator may have drawn an adverse inference on his credibility.
More notably, Keith’s “assertion” was contradicted by Henrik Sedin, who after the game remarked Keith had threatened his brother. Despite being an eyewitness on Keith’s intent, Henrik did not partake in the formal hearing. A full examination of Keith’s credibility should have sought this testimony.
In grievance arbitration, the employer is usually tasked with establishing evidence supporting its original reasons for discipline. Some detective work reveals problematic reasoning in the substantial 25-game suspension of Raffi Torres in 2012. In the video explaining the decision, Shanahan stated, “Torres not only is a repeat offender as defined by the CBA, his extensive supplemental discipline history consists mainly of acts very similar to this one . . .” He then sets out those prior acts of Oct. 20, 2007, March 29, 2009, April 5, 2011 (incorrectly noted as April 5, 2010), Dec. 29, 2011, and Dec. 31, 2011.
A “sunset clause” is a common provision that restricts how far back an employer can reach to justify the severity of a discipline. The sunset clause in the CBA is 18 months. Because more than 18 months passed between March 2009 and April 2011, Torres’ status was really something less than “extensive.” Had appealing to a neutral discipline arbitrator been an option, voiding the entire suspension would have been a possible outcome. At the very least, the NDA may have reduced it to 15 games, which proportionally accounts for a three-time repeat offender substituted for a five-timer.
Torres did appeal and Bettman reduced it to 21 games. Curiously, a written decision is not publicly available — surely, this exists given a July 2, 2012, “opinion” on Torres is cited in the Kaleta decision mentioned below.
Variable suspension lengths
Consistent enforcement of a workplace rule is imperative for supporting appropriateness of discipline. The DPS has acknowledged the precedential value of its past decisions and the accompanying videos.
In the opening game of a 2013 playoff series, Torres was again the perpetrator of an illegal check. He was suspended for the “rest of the series.” Essentially, it would amount to three to six games contingent on a measure unrelated to the incident. That series indeed went to Game 7 rendering the suspension at six games. Suspensions like this do not form suitable precedents.
Compromised rule application
Rule 70.10 is an exception to the relevance of severity: “The first player to leave the players’ or penalty bench illegally during an altercation” is automatically suspended for 10 games. Here, the discipline is predetermined so the only issue is whether the rule was breached.
From a labour law perspective, the application of 70.10 was troublesome in Paul Bissonnette’s matter this pre-season. Prior to an appeal before Bettman, the NHL overturned the automatic 10-game suspension due to a “lack of conclusive video evidence, and Bissonnette’s credible assertions regarding the intended legality of his substitution.” Yet, it found he “must bear some responsibility for the situation” — the suspension was reduced to three games.
An NDA applying the principle of onus on the employer in a discipline grievance may only have had two options here: uphold the 10-game suspension or wipe it to zero. Given the lack of video evidence, the DPS may fail to meet its burden of proof. Thus, while Bissonnette was “grateful for the time the NHL took to review [his] case and saw what [his] intentions were,” an even better outcome was plausible.
Extended appeal process
In sports, discipline matters are urgent because competitions are frequent. This is recognized in the Olympics where the Court of Arbitration for Sport hears appeals and issues awards within 24 hours.
Likewise, the collective bargaining agreement mandates appeals be held on an “expedited basis.” However, consider the time frame of Patrick Kaleta’s recent appeal of a 10-game suspension. The incident on Oct. 10 resulted in the suspension on Oct. 15, which Kaleta appealed the following day. Another formal hearing ran on Oct. 21 with Bettman upholding the suspension in an Oct. 24 written decision.
Suppose Kaleta had appealed further to a neutral discipline arbitrator. Assume a week would pass before the (third) formal hearing. The problem is between Oct. 11 and Oct. 31, the Buffalo Sabres had precisely 10 games scheduled! Thus, the suspension would be fully served prior to closing the case. The two levels of appeal are unpractical.
A shortcoming to the foregoing legal approach is the parties do not impose the “letter of the law” on themselves. This is demonstrated by the ongoing jurisdictional uncertainty. With seven teams and the NHLPA office in Canada, 23 teams and the NHL headquarters in the United States, is the appropriate jurisdiction American labour law under the National Labor Relations Act, Canadian labour law under the Canada Labour Code, or provincial labour laws?
The Alberta Labour Relations Board provided valuable commentary on this. As a tactic during the 2012-13 lockout, the NHLPA on behalf of Calgary and Edmonton players (unsuccessfully) sought an injunction declaring an unlawful lockout in Alberta. In declining to exercise jurisdiction, the chair wrote:
“The NHL and the NHLPA have never established definitively which jurisdiction’s labour laws govern their relationship and therefore which labour board is empowered to adjudicate their disputes. Each party has, at one time or another, taken a position opposite to the one currently argued before this Board and adopted strategic positions about jurisdiction that suited the immediate situation they were facing; thus, they have adopted positions of convenience of argument tailored to fit the jurisdiction and the dispute.”
The first Shanaban appealed to an NDA will likely demonstrate this more legal approach is conducive to transparency. The ensuing public relations benefits for the NHL should outweigh any hesitations about “overlawyering.” On a related note, Raffi Torres recently made his 2013-14 season debut, returning from knee surgery. I suspect the parties are pre-emptively readying for arbitration.
Daniel Glasner ([email protected]) is a labour & employment lawyer based in Vancouver. He is a member of the Sports Lawyers Association.