Uncommon Law: An Editorial Review of the NHL Supplemental Discipline Legal System

“How is that not a suspension when our guy was suspended for the exact same thing!”

            Many of us have been there.  In the days immediately following what we perceive to be an illegal hit that goes without any supplemental discipline, we are left in a state of confusion.  We have spent the past twelve hours breaking the hit down frame by frame, comparing it to other hits that received/did not receive any supplemental discipline, as well as the perpetrators of those blows.  We have convinced ourselves that there has been a precedent set by prior rulings and we figure out what this particular hit should merit based on those precedents.  But then, when the moment finally comes, the decision is just completely at odds with what we have decided it should be.

            The most infamous example of this was Shea Weber “turnbuckling”[1]Henrik Zetterberg at the conclusion of Game 1 of the Western Conference Quarterfinals.  Everybody knew he would get suspended for that.  It was violent.  It was deliberate.  It was to the head.  Weber is a repeat offender.  Seemingly, all of the pieces were there not only for a suspension, but a fairly hefty one at that.  The next day, judgment came down from Brendan Shanahan, Senior VP of the NHL’s Department of Player Safety,[2] giving Weber the maximum allowable, slap on the wrist, fine of $2,500, with no games lost.  Meanwhile, many other players were being suspended/not being suspended for lesser/more severe infractions.  What gives?[3]

            The reaction that most of us have is to compare an incident to the rulings on past similar or analogous incidents.  This is natural to us here in most of the United States and Canada.  The state of Louisiana and the province of Quebec notwithstanding[4], the legal systems of the US and Canada are what are known as "Common Law" systems.  This type of legal system derives from our British ancestry.  In a common law system, emphasis is placed on past case rulings, from which principles are derived and applied to future cases, under a legal principle known as "Stare Decisis."  In other words, past case rulings create binding precedent upon future rulings, until those rules are changed, either by statute or by a reversal from a higher court.  The rationale behind this is that it would be unjust to decide similar incidents differently on separate occasions.  It creates a guiding set of principles that allow for a consistency in ruling.  This type of legal system is present predominantly in the countries which were touched by the British empire.

            By contrast, a “Civil Law” system is one in which individual case decisions are less important than a judge’s interpretation of the laws and rules that govern a dispute, giving each case its own individual ruling.  That is not to say there isn’t any consistency.  Civil law systems follow the legal principle known as “Jurisprudence Constante.”  The chief distinction between stare decisis and jurisprudence constante is that a single case affords sufficient foundation for stare decisis, while a series of adjudicated cases, all in accord, form the basis for jurisprudence constante.[5]  This is the predominant legal system in the world, forming the basis of all of Europe’s legal systems outside of the United Kingdom, as well as most of Asia, South America, and Africa.

            The NHL’s supplemental discipline process is a civil law system.  Brendan Shanahan has established a series of rules and principles, starting with the NHL rule book, and then expanding to other specific factors, such as principle point of contact, leaving their feet, consideration of injury,[6] hitting from behind, position of player getting hit, and movement of the players in the moments preceding the hit.  Shanahan applies these rules to each incident individually.  While he has admitted in an interview that he will look at prior hits for some guidance, in the end, each case is judged on its own merits.  Sometimes we agree with his decisions, sometimes we don’t.  But regardless, his rulings should be critiqued individually, and not in conjunction with each other because he is not operating as a common law system, but rather as a civil law system.

            Let’s revisit the Weber incident from the playoffs.  When you view supplemental discipline as a common law process, Weber’s punishment is not only a bad decision, but makes all other decisions look bad in relative comparison to Weber.  However, if you look at Weber’s supplemental discipline on its own, unaffected by and not affecting the other supplemental discipline decisions/non-decisions, Weber’s decision still looks terrible, but makes the other decisions less baffling, not counting those which were baffling on their own.[7]

           

            So in the future, don’t bother analyzing hits and suspension by comparing them to previous rulings by Shanahan.  Just look at each offense’s own merit based upon the sometimes nebulous criteria set forth by the league and the Department of Player Safety.

            But what do you think?  Should each case get its own special consideration based upon the rules, or should a body of case law be built based on prior precedents to determine the outcome of future incidents?

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[1] The old-school WWF fan in me absolutely loves this term, but the hockey fan in me is embarrassed that it could be used to describe something that actually happened in our game.

[2] Editorial forthcoming on the real purpose of this department. Spoiler, it is NOT player safety.

[3] In the comments section, feel free to vent about some of your most unexplainable suspensions/non-suspensions.

[4] Louisiana and Quebec have hybrid systems. Louisiana is much closer to a pure civil law system than Quebec.

[5] Willis-Knighton Med. Center v. Caddo-Shreveport Sales and Use Tax Comm., 903 So.2d 1071 (La. 2004)

[6] Future rant forthcoming because it makes no sense in determining illegality, and should only go to weight of discipline

[7] No supplemental discipline for Alexander Ovechkin leaving his feet and headshotting Dan Girardi? Really?