Now, I don't know how the legality of this works, if it's the players union who should pursue action, Alexander Ovechkin or the Washington Capitals, but looking at the CBA Brendan Shanahan's ruling definitely violated the CBA. Ironically, it's the video he released that's the evidence of this violation.
Of course, I'm not a lawyer, and I'm not talking about whether he should or shouldn't have been suspended, but rather, that Shanahan and the NHL actually violated the CBA. So for that purpose I ask that you try to put aside your predispositions for a moment and try not to focus on whether he should, or shouldn't have been suspended. This is more about the rights of the players and the adherence to the CBA.
Let's start by looking at the transcript of the Ovechkin suspension.
The critical part of the video transcript that I would like you to focus on is here:
It is important to note that Ovechkin has been suspended twice and fined twice for physical fouls during his six-season NHL career. We also took into account that while Michalek was shaken up on the play, he suffered no apparent injury and remained in the game.
This is without a doubt, a statement that acknowledges Ovechkin's previous history was taken into account when determining Ovechkin's suspension. We're all on the same page here I hope.
Fact: Shanahan admits on video that he used Ovechkin's history when determining the punishment.
Fact: Shanahan is alluding to Ovechkin being treated as a "repeat" offender.
Now, some of you might be saying, "of course he did and he should!" So that we don't get caught up in an argument about semantics or how the system should or shouldn't work, let's only focus on how the system actually works as written in the laws and by-laws of the established CBA. You can view the current NHL CBA here.
The critical area to focus your attention on is Exhibit 8. Article 6.c:
( 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.
So what does this mean legally?It means that the status of the offender is defined by "first" or "repeat" offender. So a player can only be one of those two things. It also conveys that there is only one "status of the offender". Hence, "The status of the offender", singular.
Fact: There is only one status for an offending player and that is either "first" or "repeat".
Fact: This "status" is used in determining Supplementary Discipline.
Now you're probably asking how this correlates to the NHL violating the CBA.I'd like you to look at the previous article in the CBA, Exhibit 8. Article 5.
5. The League will calculate the amount of money the player must forfeit due to the suspension. This will be calculate on the following basis.
This section is established to address the money a player can forfeit. I imagine a good number of you might feel that this article is not related. Unfortunately, you would be mistaken. While this preceding article addresses the financial implications of the player, it provides one critical facet of information:
(d) Status 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.
Now there are some who would say this only relates to the financial implications, however this is not correct. This section actually offers the only definition of "status of offender" and what "first" and "repeat" are. It also tells us how the status is established. Again, there is only one "status of offender". We know this else the argument one would be make is that an offender could be a "first" offender for financial implications and a "repeat" offender for supplementary discipline.
This logic fails because the rest of the Exhibit refers to "the status of offender" - again, singular.
It also fails because as a reader/lawyer, we know Article 6 refers back to "the status of offender" as defined in Article 5. Else if the definition is not established in Article 5, then legally there is no definition of "the status of offender" and within the context of the CBA the use of "status of offender" would have no meaning.
Fact: There is only one "status of offender".
Fact: The definition of "status of offender" is established in Article 5.
Hopefully you are with me up to this point. I'd like to make the distinction that this is what is written as law in the CBA and not my opinion. While I, like you, know the definition of "repeat" and "first", it's important to understand that within a legal document the definition has to be established within the context of the CBA.
As an example, we all have a general understanding of a "drunk driver" or what is "driving under the influence". Legally however, a "drunk driver" or "driving under the influence" is defined as a person operating a vehicle with a blood alcohol content of > .08. What I'm attempting to convey is that there is a specific definition within the letter of the law, much like there is a specific definition of "status of offender" within the CBA. Without these definitions the term has no definition and is open to interpretation defeating the purpose of establishing the law to begin with.
Fact: The NHL violated the CBA with the Ovechkin suspension by incorrectly following Articles 5 and 6 of Exhibit 8.
This is important for a number of reasons. The first being that Ovechkin was incorrectly labelled as a "repeat offender" according to the CBA and that fact was used against him in the decision. Perhaps more importantly however, is this is a violation of the CBA by the NHL against one of its players. An issue with ramifications for the player's union.
So what are your thoughts on the matter? What should be done about this and by whom?
I think you're misunderstanding. You're confusing the "Repeat Offender" designation with whether or not the league thinks a guy breaks the rules a lot and treats him as such.
Repeat Offender (note the capital letters) is a legal designation in the CBA. If the player fits the criteria for Repeat Offender, wage-garnishement is calculated differently than if he doesn't. That's it. The presence or lack of Repeat Offender designation has nothing to do with how long Shanahan Shanabans someone for. It has nothing to do with whether or not Shanahan thinks he needs to be taught a lesson (Incidentally, Ovechkin was not singled out; all five times a guy has left his feet and made contact with the head this season, the hitter has gotten AT LEAST 3 games)
Put another way, if Todd Bertuzzi breaks another guy's neck next week, Shanahan can hammer him with 160 games, citing the fact that it's the second time he's done this. And Bertuzzi's wage garnishment would not be calculated as if he were a Repeat Offender. Capiche?
It also does not matter if he "took his other suspensions into account" because, Shanny can suspend anyone as long as he wants, and the length depends on the severity of the penalty. Nothing was violated as he never said "I suspended him longer because of his history."
There is a definate bias here, how can a player recieve 3 games when it wasn't intentional, and when someone who deliberatey elbows a player in the head only recieves a 5 game suspension. If we are serious about removing blows to the head, then a suspension should equal the length of the injured players absence.
@dtellthetruth Everybody else who has left his feet and made contact with the head has gotten a minimum of 3 games, except Sutton, who got 5. 3 is the minimum that could have been expected, considering Fistric and Engelland, neither of which have any disciplinary history anywhere, both got exactly that.
@dtellthetruth The hit on Hendricks has no bearing on whether or not Ovechkin should have been suspended or whether it's political. Boarding is boarding. A leaping head hit is a leaping head hit.
With boarding, Shanahan's been all over the map. I don't understand any of the boarding suspensions or non-suspensions. Nino Neiderreiter gets 4 games for one board. Brendon Sutter gets zero for the identical hit. Bogosian gets nothing because Bouchard turned, but Kris Letang gets two games because he should have, quote, "predicted" the guy would turn, even though Burmistrov said he was trying to fool Letang into missing and that the play was boarding was his (Burmy's) fault, not Letang's. Shelley and Dennis Seidenburg do the same exact thing as each other and one gets 10 games, one gets nothing. Michalek gets off because his knees buckled--even though the hit was already lined up at the time.
I do not understand the reasoning behind any punishment or non-punishment I just listed.
But Ovechkin didn't board anyone last week. Ovechkin lept from his feet and caught head. That sequence of events has been punished with the utmost consistency since Shanahan's been in office: 3 games minimum, 8 games max.
Every. Single. Time. It, Happened.
If anything, one could argue OV got off light. Engelland and fistric, both suspended 3 games for the exact same thing OV was, didn't have records. Sutton and OV did. Sutton got 5, OV got 3 for doing the same thing. No injury on either hit.
You understand, when a burglar gets convicted of a burglary he did and a drug dealer gets his charges thrown out, that doesn't mean the burglar was 'singled out.' He did his crime, was found guilty, and got the same punishment as all the other burglars. Maybe the prosecutor's just bad at getting convictions on drug dealers.
@dtellthetruth Again what I am saying is when a player is hit intentionally and injures that player the suspension should match the time period that the injured player is not able to play.
As for O.V. there is a definite bias, why was the the hit on Hendricks not penalized, it was an obvious elbow to the head, no one can deny that. I guess leaving your feet is wrong but an elbow to the head isn't, neither do I believe it to be intentional but why is only one penalized. Remember the last O.V. suspension, a good body check just simply outweighed the guy by 50 pounds.
I'm talking about deliberate elbows to the head, like the one to Backstrom from Bourque. If were serious then crack down hard. I'm all for it. Yes a suspension to O.V. may have been accurate but follow the same rules for everyone.
Were living in a different NHL now, it's tuff to be fair but there has to be accountability for the wrong suspension from the past. Let's face it if a person who is found guilty of murder, is latter exonerated the authorities do everything
in their power to deny and obstruct the Truth from coming out, where there is power there is corruption and bias. This holds true for the NHL as well and for Brenden. He has a responsibility to suspend all players who don't correctly follow the rules, If he can't get that right which I agree can be very difficult, then at least crack down hard on the obvious and deliberate blows to the head. I use again the example of Backstrom, why not suspend the player for as long as Backstrom is out.
First of all, you are interpreting the CBA as a statute. It's not. It's a contract. Secondly as I understand it, Ovi was suspended in 2010 twice, once on Dec 1, and then again on Mar 24. I would argue, as I'm sure the NHL would as well, that Exhibit 8(5)(d) is in fact referring to is a suspension within 18 months from the first suspension. You are interpreting it as it having to be ever 18 months from every suspension. If you look at the example given, it is unclear whether or not the 18 month period comes on the heal of the first suspension and then if they are suspended again they are considered a repeat offender. Either way, the problem here is the NHLPA can only appeal to the commissioner, as per Exhibit 8(2)(d).
But here's the kicker, I would also call to your attention Exhibit 8(6)(e) "Such other factors as may be appropriate in the circumstances." As you can see, there was no mention of the word, "Repeat offender" in the video. In fact there was only mention of 2 suspensions and 2 fines. No where in the "repeat offender" definition do previous fines come into play. I would argue that this means that instead of utilizing those prior suspensions and fines as reasoning for Ovi's suspension under Exhibit 8(6)(d), Shanahan has more than enough leeway under Exhibit 8(6)(e).
Also lets not forget that Ovi should be suspended for not going to the All-Star Game, as Pavel Datsyuk and Lidstrom were several years ago. But I'll let it slide, as a more deserving candidate is going in his stead. 27g and 20a to 20g and 19a, its a no brainer. Neal is more of an All-Star this year.
How can he be suspended when he is already suspended. Sounds like he feels he is being targeted and doesn't want to go. It doesn't matter what you or I think, they can't make him go cause he is already suspended. If Brenden would have said at the time of the suspension that O.V. has to go to the all star game he would not have had a leg to stand on. Why is it a big deal the NHL is getting what they put out if you want to crack down on blows to the head live with the consequences just like O.V. has to.