Monday, March 21, 2011

How The NHL CBA Applies to the Cooke Suspension

The NHL today suspended Matt Cooke for 10 games plus the first round of the playoffs. So that's a minimum of 14 games and possibly 17 games. Personally, I am outraged - outraged that players keep targeting Cooke's elbow with their heads. Players just keep ramming their heads into his elbow - even when  they seemingly don't see his elbow coming.

The CBA sets out the procedure for supplementary discipline. It's found at Exhibit 8 of the CBA and is entitled Procedures Relating To Commissioner Discipline. 

Section 6 of the CBA at Exhibit 8 provides a list of the factors the league will consider when determining supplementary discipline:
6. Factors In Determining Supplementary Discipline

In deciding on supplementary discipline, the following factors will be taken into account:

(a) The type of conduct involved: conduct outside of NHL rules; excessive force in contact otherwise permitted by NHL rules; and careless or accidental conduct. Players are responsible for the consequences of their actions.

(b) Injury to the opposing Player(s) involved in the incident. 
(c) The status of the offender, and specifically whether he is a "first" or "repeat" offender. Players who repeatedly violate NHL rules will be more severely punished for each new violation.

(d) The situation of the game in which the incident occurred: late in the game, lopsided score, prior events in the game.

(e) Such other factors as may be appropriate in the circumstances.
As you can see, section 6(e) provides the decision maker with the discretion to consider factors not listed in subsections 6(a) to (d). So that means that the factors set out in Section 6 are non-exhaustive.

In its press release, the NHL stated as follows:

"Mr. Cooke, a repeat offender, directly and unnecessarily targeted the head of an opponent who was in an unsuspecting and vulnerable position. This isn't the first time this season that we have had to address dangerous behavior on the ice by Mr. Cooke, and his conduct requires an appropriately harsh response."

Since this is likely to be the extent of the reasons provided by the NHL in support of its decision, let's break it down in keeping with the language in the CBA.

(a) "Mr. Cooke, a repeat offender": That's Section 6(c) of the CBA. Cooke's most recent suspension was for 4 games on February 9, 2011 for his hit on Blue Jackets defenseman Fedor Tyutin from behind.

The CBA also defines "repeat offender" at Section 5(d) of Exhibit 8:
"[S]tatus as a "first" or "repeat" offender shall be re-determined every eighteen (18) months. For example, where a Player is suspended for the first time, he is a repeat offender if he is suspended again within eighteen (18) months of the first incident. If he is not suspended a second time within this eighteen (18) month period, he will no longer be treated as a repeat offender for disciplinary purposes
Don't forget, though, that even if a player is not a "repeat offender" as contemplated by the CBA, the NHL can still consider a player's history as per Section 6(e). So if Todd Bertuzzi delivered a headshot, while he wouldn't be considered a "repeat offender" since he's been clean for 18 months, you can bet the NHL would still consider his history.

(b) Cooke "directly and unnecessarily targeted the head of an opponent who was in an unsuspecting and vulnerable position": That falls under Section 6(a), which addresses excessive force and "conduct outside of NHL rules".

Ryan McDonagh claims to be “doing all right”. So Section 6(b) didn't likely come into play. As well, when the hit occurred, the game was close so Section 6(d) didn't apply either.

Appeal Process

Section 3(g) of Exhibit 8 provides that in cases of suspensions that are six games or more, a player may appeal the decision to the Commissioner:
a Player may seek review of a disciplinary determination by the Commissioner, who will endeavor to rule promptly on any such appeal. In cases following a formal, in-person hearing, the Commissioner will apply a "de novo" standard of review.
A "de novo" standard of review means that the Commissioner would look at the case as if the earlier decision had never occurred.

Since the "judge" is the Commissioner (or a designated subordinate), Cooke shouldn't expect a different decision.

If Cooke is still not happy with the Commissioner's decision, he can take it to court. However, unless the decision is so outrageous and out in left field, he doesn't really stand a chance. A court won't interfere with the league's decision unless it feels it absolutely has no choice.

One final note: Historically, the NHL has handed out modest suspensions for headshots and arguably has not adopted sanctions designed to eliminate, or at the very least, strongly discourage, headshots and other violent acts on the ice.

If you agree with this, is it unreasonable to conclude that the NHL shares some responsibility for Cooke's latest hit?

One final note - Part 2: In 31 games this season, McDonagh is a plus 17, second on the Rangers. You might remember that Bob Gainey and the Canadiens gave up McDonagh to take on Scott Gomez and his hefty contract. The trade was Gomez, Tom Pyatt and Michael Busto for McDonagh, Pavel Valentenko and Doug Janik. Habs fans still haven't forgotten this terrible trade, where they lost the very promising 6-1, 220 pound McDonagh, who is already showing why he was drafted 12th overall in the 1st round. In a salary cap world, Gomez should have never been acquired by the Canadiens. At the time of the transaction, he had 5 years left on a contract with a yearly cap hit of $7.357. That's a lot for a player that hadn't scored more than 16 goals over the past 5 seasons, and except for 33 goals in 2005-06, never scored more than 19 goals in a season. And don't forget, by taking on that big salary, the Canadiens lost valuable cap space needed to sign other players. If the Canadiens really wanted Gomez, his cap hit was such that the team should have only given up a draft pick and not a top prospect. This is particularly the case given that the Rangers had all kinds of problems unloading Gomez.

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