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Principled Punishment Prevails: N.H.L. Fairly Suspends Matt Cooke


nhlBefore Game 3 of the National Hockey League [N.H.L.] first round Western Conference playoff series between the Colorado Avalanche and the Minnesota Wild on April 21st, 2014, it might have been reasonable to have forgotten how odious a reputation the Wild’s Matt Cooke had acquired over his 15-year professional career.

After Game 3, however, everyone got a smelling salts to the nose refresher. At 17:58 of the second period, Cooke delivered a crippling knee-on-knee hit on the Avalanche’s best offensive defenceman Tyson Barrie.  As a consequence, Barrie was done for the game. He will reportedly be out of commission for 4 to 6 weeks.

Reactions across hockey were powerful. Invective against Cooke was familiar. Rodent analogies (rat, skunk,…take your pick) were abundant. For violating League Playing Rules, Cooke received a 2 minute minor for kneeing. Of course, on ice punishment dispensed by game officials can be, after review, supplemented with additional discipline from the Commissioner or his designate. Given the hit’s nature and Cooke’s history, it isn’t surprising that the occurrence attracted additional punishment under Article 18 [Supplementary Discipline For On-Ice Conduct] of the N.H.L.’s Collective Bargaining Agreement [“CBA”].

In a disciplinary context that values swiftness, effectiveness, consistency with League Playing Rules, and maintaining “the basic fabric” of the N.H.L. game, when deciding questions of Supplementary Discipline five (5) factors should be considered under Article 18.2: 1. the type of conduct involved; 2. the injury to the opposing player; 3. the “status” of the offender, particularly his Supplementary Discipline history; 4. the game situation in which the incident occurred; and 5. any other factors which would be appropriate to consider in the circumstances.

After an April 23rd hearing, the N.H.L. suspended Cooke for seven (7) games. If reputation and visceral feelings governed Supplementary Discipline, Matt Cooke would have been, at least, a candidate for life without parole. But that’s not how it played out and, arguably, fairly so if relevant principles and Article 18.2 factors are applied to the facts. Cooke’s Supplementary Discipline history is not enviable. Still, it shows all but one of his prior suspensions were 4 games or less and that he had never been suspended for knee hits before (despite other non-Discipline knee incidents). Barrie’s time line for recovery, if accurately reported, would have him skating (probably not playing) in June.

Additionally, if the “gap principle”, a rule applied in criminal sentencing that says dated convictions should not be used as an aggravating factor to increase an offender’s sentence, applies in Cooke’s case, he should be suspended without old suspensions, especially those from 10 and 5 years ago for dissimilar conduct operating to increase the length of his suspension for the Barrie hit. His three years of virtually faultless behaviour since 2011 should also be considered.

When it comes to how much compensation a player loses as a result of games missed while suspended, a gap principle his hard-wired into the process under Article 18.15 [Forfeiture of Compensation Upon Suspension] of the CBA. Under 18.15(d), suspensions older than 18 months are not considered when determining repeat offender status (repeat offenders lose a larger proportion of compensation per game lost due to suspension than do “first” offenders).

Undoubtedly, most of the people using vermin metaphors in a Matt Cooke discussion will cite the length of his latest suspension as evidence of a failure in N.H.L. justice. A less subjective view grounded on the relevant principles and facts suggests that the punishment he received is reasonable and within the appropriate range.