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Shawn Thornton appeals 15-game suspension: Tell-tale test case for NHL discipline process

Nicholas J. Cotsonika
Yahoo Sports

Good. The Boston Bruins’ Shawn Thornton has appealed his 15-game suspension for his attack on the Pittsburgh Penguins’ Brooks Orpik on Dec. 7, and it is an important step for player safety in the NHL.

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If Shawn Thornton's 15-game suspension is reduced on appeal, it undercuts the NHL's ability to punish offenders. …

Why?

One of two things are about to happen:

— Commissioner Gary Bettman and maybe a neutral arbitrator will uphold the suspension, and that will cement it as precedent. Going forward, every player will know that if he does what Thornton did, the NHL’s department of player safety will have the power to give him 15 games – even if it’s a first offense.

— Bettman or the neutral arbitrator will reduce the suspension, and that will expose the real problem – that the department of player safety does not have the power to do what needs to be done, because the NHL and the NHL Players’ Association have neutered it, not mandating stiff enough penalties.

If Thornton is right, if 15 games is too much for hunting down someone, sneaking up behind him, slew-footing him and punching him in the head when he’s down, then something is wrong. Then the system is a joke, and so are both of the parties ultimately responsible for creating it – the league and the players.

Then something will have to change, because in the big picture, 15 games was not enough.

[Related: Can Shawn Thornton win his 15-game suspension appeal?]

First, let’s be clear about a few things:

Thornton has every right to appeal all the way to the neutral arbitrator if he has to. It doesn’t matter that he said after the incident he made a mistake and couldn’t say he was sorry enough. It is possible he could have made a mistake and the NHL still could have made a mistake of its own by suspending him too long.

The NHLPA fought to fix the appeals process in the last labor negotiation. The commissioner used to hear all appeals, so if a player felt he was penalized too harshly, his only recourse was to appeal to the man who hired the guy who penalized him. It was a farce.

Now a player can appeal to the commissioner, and if the commissioner rules six games or more, the player can appeal to the neutral discipline arbitrator for the final word. The NHL and the NHLPA have agreed on James Oldham. No one has gone that far. Yet.

NHL disciplinarian Brendan Shanahan should not be able to do whatever he wants, knowing Bettman almost certainly will back him up and that will be that. The NHLPA needs to defend players’ rights and ensure the process is followed properly all the way to the end, even though it looks bad when the union argues on behalf of an attacker while a fellow player is suffering from concussion symptoms.

Thornton has an argument. Once Shanahan determines an act was illegal, he is supposed to base the penalty on the severity of the act, the history of the player who committed it and the degree of injury caused. The stiffest suspensions are supposed to go to repeat offenders.

Shanahan had never suspended anyone more than 10 games in the regular season before this, even though other cases included long histories or bad injuries or both. Thornton had never been fined or suspended before, even though he is an enforcer who had racked up more than 850 penalty minutes in more than 520 NHL games. Orpik went off on a stretcher and suffered a concussion, but he had resumed skating within a week.

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Brooks Orpik, who was stretchered off the ice, has resumed skating but is still suffering concussion symptoms. …

The Philadelphia Flyers’ Ray Emery was not fined or suspended earlier for pummeling the Washington Capitals’ Braden Holtby, whom the league considered a reluctant combatant. The Ottawa Senators’ Matt Carkner received only one playoff game in 2012 for pummeling the New York Rangers’ Brian Boyle, whom the league considered an unwilling combatant. (Carkner had a history, but Boyle was not injured.)

Thornton could ask why he deserved 15 games considering all of that.

But here’s the answer:

The act was so egregious that Thornton’s lack of history didn’t matter, and frankly he was lucky Orpik suffered only a concussion and had resumed skating by the time of the ruling. Orpik was still suffering symptoms, and concussions are tricky. The injury also could have been worse – say, a broken neck – and then what?

This was premeditated. Thornton tried to fight Orpik in retaliation for a hit on a teammate, and he took a roughing penalty when Orpik declined. This happened when Thornton went after Orpik a second time.

This was not a hockey play. It was not even in the course of play. Thornton approached Orpik during a stoppage in play and had plenty of time to think.

Orpik was not a reluctant combatant at that point. He was not even an unwilling combatant at that point. He was unsuspecting – a key distinction. He never saw Thornton coming and never had a chance to defend himself.

[Also: Why the NHL's precedent-setting suspension still isn't enough]

The CBA says Bettman must determine “whether the decision was supported by clear and convincing evidence.” It says the neutral arbitrator would have to determine “whether the final decision of the League regarding whether the Player's conduct violated the League Playing Rules and whether the length of the suspension imposed were supported by substantial evidence.”

The evidence is clear, convincing and substantial that Thornton broke the rules. But what about the length of the suspension? The union could argue that there is no precedent for 15 games. The NHL should argue that this sets a precedent. The league has to be able to nail even a first offender for something like this. Otherwise, there isn’t much of a deterrent.

The bigger picture:

Through collective bargaining, the NHL and the NHLPA have created a two-tiered system. A suspension of five games or less requires only a phone hearing. A suspension of six games or more requires an in-person hearing – and includes the possibility of an appeal to a neutral arbitrator. Shanahan has said it doesn’t matter. But it paints him into a box and sure seems like a way to keep suspensions shorter.

The league’s general managers set the tone for the rules and their enforcement, and the players have a say through collective bargaining and the competition committee. Neither side has supported stiff suspensions, except for repeat offenders.

Take a look around, guys. The current rules and their enforcement aren’t getting rid of the crap everyone says they want out of the game – from hits to the head, to fights involving reluctant or unwilling combatants, to attacks on unsuspecting players. The next Emery should be suspended. The next Carkner should get more than one playoff game. The next Thornton should get more than 15 games. Other acts should receive more games than they do now.

Shanahan says his goal is to change behavior, not to send messages. He said that takes time and most guys are getting it. Well, maybe you have to send messages to change behavior. It is taking too long. Too many guys aren’t getting it. There are too many “isolated” incidents.

There needs to be more of a deterrent.

Whether Thornton wins or loses his appeal, it’s time for the NHL and the NHLPA to wake up and give Shanahan the mandate to come down harder to protect the players and the product. Especially if Thornton wins his appeal, it’s time.

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