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?