Photo Credit: Anne-Marie Sorvin/USA TODAY Sports
As the clock wound down on the Flames recent 4-2 victory over the Canucks, the game descended into a series of flying body checks, chucked knuckles and post whistle scrums. This mirrored the previous game, a 4-1 Vancouver victory that ended in an ice clearing brawl and a $50,000 fine to Calgary coach Bob Hartley. 
That fine is the only supplemental discipline the NHL has handed out in a series that has featured gratuitous head shots, sucker punches, at least two last minute instigator penalties and numerous infractions that were ignored by the officials. It’s been a rough series and because of the NHL’s typically pedestrian response to the violence, it figures to get even uglier. 
The NHL’s system of justice is broken. It’s been broken for a long time. Here’s how and why they keep getting things wrong. 
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Before we start, let’s establish that I’m a Flames fan and obviously motivated by some of the Vancouver Shenanigans I witnessed the other night. Specifically, the Alex Burrows instigator fight (suspension rescinded), the Dan Hamhuis headshot on Sam Bennett (nothing beyond a 2 minute penalty) and the missed Kevin Bieksa instigator penalty on Michael Ferland. 
This comes a week or so after a Flames game against the LA Kings, which was obviously played with an aim of hurting various Calgary players in a bid to make the playoffs. As a result, it appears both Sean Monahan and Jiri Hudler (two thirds of the Flames top line) are playing hurt thanks to various ailments suffered in that contest.
Beyond rooting interests, it’s arguable both teams in the Flames first round series has been guilty of borderline physical tactics. This increasingly escalating retaliatory behaviour has been empowered by the loose officiating standard and the NHL’s even looser interpretation of it’s own disciplinary rules. 
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For instance, the “automatic” instigator suspension, which has now been rescinded twice in three games, was ostensibly written to deter bench clearing brawls at the buzzer, but is so rarely implemented so as to be more or less irrelevant. 
And so we encounter two of the league’s biggest issues when it comes to discipline and justice. They are 1.) (in)consistency and, related 2.) discretion informed by matters not related to discipline. 
Let’s start with the first point. 

Consistency

A key facet of deterrence and fairness in justice is consistency in application of consequences.  Unfortunately, the league’s continued inability to interpret and apply it’s own rules in anything resembling a constant manner renders the department of player safety next to meaningless. This stems, in part, from the fact that many rules are written in broad, ambiguous language with the express purpose of leaving them to the discretion of the league. 
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The suddenly controversial instigator suspension rule, for instance? It actually says a suspension for instigating a fight in the final five minutes of the game “shall be served unless, upon review of the incident, the Director of Hockey Operations, at his discretion, deems the incident is not related to the score, previous incidents in the game or prior games, retaliatory in nature, “message sending”. 
That seems strangely particular, but the language is ambiguous enough that it can be applied in a more or less arbitrary fashion by the NHL. The truth is, this broadly structured rule is intended to be applied very, very narrowly – almost exclusively to “acts of goon” or acts of vengeance so egregious they can’t be ignored. Call it the Chris Simon/Todd Bertuzzi clause. 
How does the Director of Hockey Operations know if a fight had anything to do with the score? Or was aimed at “sending a message”? Who knows? It doesn’t matter, really. The NHL has leaned on aspects of mens rea forever. Not to inform the process of justice, you understand, but to establish enough wiggle room that almost any decision coming from the office of player safety can be justified or defended. 
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The result of the random and reluctant application of rules like this is the eroding of their rule’s power to deter behaviour. The players, coaches and even the fans understand that, in fact, the law isn’t actually written to protect players or suppress violence – they are, primarily, discipline theatre; a kind of puppetry designed to enact punishment on fringe players (because no one will argue) or near criminal acts of malice (because they can’t be swept under the rug) for the sake of appearances.

Serving Multiple Masters

The NHL’s department of player safety’s mission statement is: “We are committed to making the game as safe as possible for our players while preserving the intensely physical, competitive, and passionate nature of hockey.” 
The operative words here are “as safe as possible” and “while preserving the intensely physical…” The league knows that violence is baked into the very culture of the game and is a big draw for fans of the league. Shorter version: it knows where it’s bread is buttered. Which means, in the many clashes between enacting safety and preserving violence, it is the latter that frequently prevails. 
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The league’s disciplinary council is also frequently and obviously swayed by concerns of competitiveness. This is why star players usually get lesser sentences than support guys, why fines are often preferred to suspensions and why it’s nearly impossible for players to be suspended in the post-season. The NHL is very mindful of discipline negatively influencing a team’s ability to compete, which obviously runs counter to the expressed goal of mediating player safety. 
The point of punishment and deterrence is to impose consequences that are formidable enough to influence behaviour. If discipline is lessened by fiat so a team doesn’t have to suffer from a player’s absence, then it again renders the discipline toothless and ineffectual. And, of course, this brings us back to a lack of consistency…

Conclusion

If the league was serious about player safety and supplemental discipline, it would sever the department’s concern with competitiveness and imbue it with the sole purpose of, you know, protecting the players safety. To that end, it would write rules that are clear, distinct and unambiguous in their consequences and would apply them consistently across players, teams and situations. They would also obviously have to prescribe consequences that are significant enough to influence behaviour.  
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Over the last decade or so, the NHL has endured career ending injuries related to malicious acts of violence to a handful of players, recent tragic deaths to a number of enforcers and is now involved in a class action lawsuit brought by retired NHLers suffering from concussions. This collection of issues has led to a gradual inclusion of new head shot rules being written and the player safety department featuring more prominently in audience facing media. However, the move towards truly meaningful change has still been rather reluctant on the league’s part. 
Unfortunately, until the NHL begins to truly value safety over status quo, it will continue to risk games marred by brawls, not to mention potentially life altering harm done to its players.