April 16th, 2012Top Story On NHL Suspensions And Eggshell Skulls By Barry Petchesky Shea Weber shoves Henrik Zetterberg's head into the glass: fine, no suspension. Byron Bitz hits Kyle Clifford from behind, sending him into the boards: two-game suspension. Matt Carkner sucker punches Brian Boyle, continuing to hit him after he goes down: one-game suspension. Carl Hagelin elbows Daniel Alfredsson in the head: three-game suspension. Consistency is always elusive from the NHL's department of player safety, but the playoffs are a whole new arbitrary world. Fans would love to believe Brendan Shanahan consults a Rosetta Stone of Discipline, but through five days of hockey and four punishable offenses, every touchstones we thought we knew now seems worthless. It's not about a player's history. Carkner got in trouble for an almost identical offense back in December, while Hagelin has never been in trouble with the league before. It's not about protecting stars. While Alfredsson is the man in Ottawa, Zetterberg is Detroit's points leader on the year. It's not about sparing players based on star power. While Weber got off, Hagelin is the left wing on New York's top line, the highest scoring line in hockey over the last month-plus of the season. So unless you believe that Carkner's offense was half as egregious as Bitz's, and a third as bad as Hagelin's, and Weber's wasn't suspendable at all (and hockey message boards, always havens of cold rationality, aren't buying it), there has to be some common thread that legitimizes the varied Shanabans. There is, and it's all about the results. Kyle Clifford has missed two games with his injury. Daniel Alfredsson missed the remainder of his game, and may be questionable for tonight. (Playoff questionable means "upper body injury," which could be anything from a hangnail to a subdural hematoma.) Zetterberg and Boyle were fine. Want proof it matters? Brendan Shanahan, on Weber's transgression: "I looked at that one and I'm not happy with that play," Shanahan said. "I investigated that hit. I called Detroit that night. I think that (Weber) pushed (Zetterberg's) face in the glass. I was really close to a one-game suspension on that and when I talked to Detroit and I talked to (Ken Holland) he basically said the player was fine." There's something very Old Testament about punishing not the act, not the intent, but the resulting damage. But it's also a near-universal feature of common law that a plaintiff should be compensated, or a defendant punished, for the harm actually caused—even if that harm was out of proportion to the harm that could be reasonably expected. In Vosburg v. Putney, an 11-year-old kicked a 14-year-old in the shin in class. Because of an unknown preexisting condition, the older boy ended up losing his leg. The Court found the young boy liable, upholding and setting the precedent of the "eggshell skull rule." If a victim has a brittle skull, and an innocuous punch shatters it, the liability is all the defendant's. The deed is divorced from the consequence. Punish the results, not the intent. That's what the NHL does, even if they've never articulated it in so many words. It has to be, unless you can buy that Weber wasn't trying to hurt Zetterberg by smashing his face into the glass, or that Carkner's seven punches on a defenseless player were less malicious than hard checks from Bitz and Hagelin. And you know what? Maybe it's not a bad way to legislate. If one team loses a player for some length of time, shouldn't the team that caused it be down a man as well? Eye-for-an-eye, scratch-for-a-scratch is nothing if not satisfying, and it was good enough for Hammurabi and good enough for our own justice system. Murder is punished more harshly than attempted murder, even if the intent is identical. The flaw in results-based discipline is that it's purely reactionary, and not the proactive style the league has promised in this era of concussion awareness. If the NHL were solely concerned about eliminating injury, intent would be the most important factor, and deterrence the goal. But Shanahan has conflicting concerns. He has to mitigate the prospect of injuries, while also maintaining hockey as a physical, hitting sport. (Imagine the sport if hard checks were verboten. The same message board denizens screaming for harsher penalties for Weber and Carkner would go into conniptions.) So what's left is a disciplinary system that doesn't make everyone happy, but maintains cosmic fairness while keeping hockey bloody and brutal. If it's true that a good compromise leaves everyone unhappy, punishing players for damage done is the best compromise available.

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