On October 12, 2018, I posted an article about disciplinary arbitration in the NHL. This is the sequel to that article.
THE CASE
On November 13, following disciplinary appeals to the Commissioner and an independent arbitrator, Capitals forward Tom Wilson was able to reduce his suspension from 20 games to 14. His suspension arose from a controversial hit on Blues forward Oskar Sundqvist. Wilson also had a recent, lengthy suspension history and had been suspended three previous times within the span of one year.
The NHLPA (players’ union) posted the official arbitration decision on their Facebook page. Since most people do not want to read all 41 pages of the decision, I have summarized it below:
The NHL Collective Bargaining Agreement allows for repeat offenders to be disciplined more severely, which led to George Parros’ (the Senior Vice President of the Department of Player Safety) decision to ban Wilson for such a lengthy period.[1] Parros calculated this suspension using a math formula that involved multiplying suspension lengths based on repeat conduct, which determined that this hit was worthy of a 6 game suspension (which was based on 1 playoff game being equivalent to 2 regular season games).[2] Then, the suspension length was applied to a repeat offender multiplier of 3x, totaling 18 games (plus an extra two games for Sundqvist’s injury).[3]
After the suspension, the NHLPA appealed to the NHL Commissioner, who upheld the 20 game suspension, as I predicted.[4] The Commissioner based his decision on the following findings: Wilson’s “intentional” and “unnecessary” conduct, Sundqvist’s serious injury, Wilson’s status as a multiple offender, and Wilson’s conduct showing that he had ignored Department of Player Safety “instruction . . . to make sure this d[id] not happen again.”[5] After reviewing Parros’ formula, the Commissioner determined that his calculation was “reasonable” in light of the circumstances.[6] He upheld the 20 game suspension and this arbitration appeal followed.
In the hearing, the NHLPA argued that this ban was “incredibly severe,” given the absence any intent to injure from Wilson.[7] It also argued against the formula used for calculating the suspension, believing that the calculation was “unprecedented” since the formula had never been used before to calculate this type of suspension.[8] It further argued that unlike another previous offender, Raffi Torres (the other player who had the multiplier used against him), Wilson had never previously (and intentionally) targeted a players head for contact.[9] Thus, the NHLPA advocated for an 8 game ban in lieu of his 20 game suspension.[10] However, the union established that number using a 2x multiplier formula. Additionally, the NHLPA compared this suspension to that of Patrick Kaleta, who once received a 10 game suspension following much more egregious conduct.
While the arbitrator noted that the NHL CBA (specifically Article 18.2) did not mention a specific formula for determining these types of suspensions,[11] he did not find the NHLPA’s argument distinguishing Wilson from Torres as being accurate.[12] The arbitrator agreed with the NHL’s position that one playoff game was equivalent to two regular season games, and ultimately decided that 6 games was an appropriate standard for Wilson.[13] However, the arbitrator disagreed with Parros’ formula since there was no consistency in the application of using multipliers for repeat offenders.[14] Additionally, it was decided that all parties agreed that Torres’ conduct was far more “egregious” than the conduct of Wilson.[15]
Specifically, the arbitrator saw the 3x multiplier as chosen arbitrarily.[16] As such, the arbitrator decided to reduced Wilson’s suspension to 14 games, which was decided by using the six regular season games standard and multiplying it by two, then adding 2 games for injury.[17]
THE AFTERMATH – IS THE SYSTEM BROKEN?
Regardless of whether you believe this suspension should be upheld, this decision highlights the necessity or the NHL to determine a formula for counting suspensions. On-ice conduct in violation of the rules has become too subjective and fact-specific. These variables make comparing offending players to the conduct of other offending players, or to trying to determine these decisions on the fly, inadequate.
While George Parros’ exact formula is in itself arbitrary, I believe his choice to make a formula for these kinds of suspensions demonstrates its usefulness. However, I believe such a formula should be collectively bargained.
In the 2019, this CBA will expire. At that point, disciplinary conduct should become one of the topics of negotiation so that the League and the NHLPA can create a system that appropriately and fairly determines these types of suspensions.
Take this calculation I have created, for example. Imagine if every suspension worked like this
1 Playoff game=2 regular season games
Multipliers
0-1 previous suspension =1x multiplier
2-3 previous suspensions =2x multiplier
4 previous suspensions =3x
5 previous suspensions=4x
And so on.
While Tom Wilson’s appeal may not be the best case to determine the multiplier rule, this decision only highlights the ineffectiveness of current suspension system in absence of a method of calculation. Without a proper standard, every suspension will continue to be subject to the inconsistencies and viewpoints of the various fact-finders, which creates no deterrent effect because of the inherent unpredictability of these decisions.
With a specific calculation that is mutually agreed upon, the NHL disciplinary system would be much more fair, consistent, and practical. I would even argue that it has a much more deterrent factor, since players would know exactly what the consequence would be for each subsequent violation. For example, if a player with 2 previous suspensions knew that his next violation would result in 12 games, it might cause him to refrain from reckless or intentional conduct.
Hopefully the NHL and NHLPA include such discussions in the next collective bargaining cycle to establish more fairness and consistency going forward. Only then will such determinations be made with consistency and without ambiguity.
We will see if the NHL tries to overturn this decision in a court of law, as they attempted to do in Wideman. However, given the great deference courts give to decisions rendered in binding arbitration sessions, such as this, I expect the 14 games will be the final result.
[1] National Hockey League Players’ Ass’n v. National Hockey League, Appeal of Tom Wilson Suspension, NHLPA.com, 1, 9-10 (2018) (Das, Arb.) [hereinafter In Re Tom Wilson]. https://www.nhlpa.com/news/1-16287/nhl-and-nhlpa-statement-on-tom-wilson-suspension?fbclid=IwAR0Hyr7nOmFkBTTtl-9yppLeqBvboZM6GnPr2w-yKPuDMxSSZDQiEZUqxHM
[2] Id. at 28.
[3] Id. (looking at Raffi Torres’ 10x multiplier and determining Wilson was worthy a 3x multiplier).
[4] Id. at 32; Alex Valle, A Struggle for Power, The Hat Trick Herald (Oct. 12 2018). https://wordpress.com/view/thehattrickherald.com.
[5] In Re Tom Wilson, at 27-28.
[6] Id. at 28.
[7] Id. at 28-29.
[8] Id. at 29.
[9] Id. at 32-33.
[10] Id.
[11] Id. at 35.
[12] Id. at 36.
[13] Id.
[14] Id. at 37.
[15] Id. at 41, fn. 6.
[16] Id. at 41.
[17] Id.
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