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The Post-Game Discipline for Headshots Mess Caused by Perverse Incentives in the CBA, the NHL, the NHLPA, & the Refereeing

Nico Hischier’s impending return and Jacob Trouba’s headshot on Tomas Nosek has got me thinking about NHL discipline for headshots. The NHL’s post-game discipline is a mess caused by the league, the player’s union, and the referees.

Buffalo Sabres v New Jersey Devils
Nico Hischier’s return means I have something to say about headshots, suspensions, and league discipline.
Photo by Elsa/Getty Images

Happy Thankgiving. I am thankful for all of you, the People Who Matter. Today is a day of family, friends, feasts, and for counting blessings. As such, the NHL season is on pause in between three very, very busy days in the league. Rather than hit you with some generic statement, I figure now is as good time as any to delve into a sticky topic: NHL discipline. Specifically related to headshots.

This is very relevant in recent times for the New Jersey Devils. Last Saturday, Jacob Trouba decided to blow up Tomas Nosek with a headshot that went uncalled and unpunished. It may have been fair within a close reading of Rule 48 but Nosek was literally knocked out of the game all the same. Later in that same game, it appeared Michael McLeod went high on Ryan Lindgren. He was given a major penalty, which allowed the referees to confirm it by video review. That review led to the penalty being taken away entirely - which still surprises me - even though it looked to me like McLeod wanted his head. Within this past week, Nico Hischier returned to practice. Hischier was out with a suspected concussion; a result of a head shot by Connor Clifton and a later, more legal heavy hit by Dylan Cozens. He may even return to play games as early as right after Thanksgiving - such as against the same Buffalo team who knocked him out at the end of October. His impending return is what led me to write about this.

Out of all those three incidents, only Clifton was actually punished. The officials in the game gave him a major penalty (which was cut shorter after Ondrej Palat instigated a fight for the hit), a match penalty that yielded an ejection and post-game discipline, and a two-game suspension for that post-game discipline. For perspective’s sake, should Hischier return against Columbus, then it would mean he was out for ten games. A video explaining the suspension pointed out that Clifton could have avoided the hit and that the hit targeted the head. But wouldn’t that logic also apply to Trouba, McLeod, and a myriad of other hits in this league? So why did he get tagged for a suspension at all, much less a two game suspension?

The answer is perhaps and it has led to one of the constant frustrations of the fan of a NHL team: the apparent Wheel of Discipline. It is not a new issue and it certainly has not been solved. Sure, it may be a rigorous exercise of what-about-ism. But it is warranted here because there does not seem to be a consistency in terms of what gets called, what gets a suspension, and how long is said suspension. It is absolutely fair to question why Clifton got two games plus a major and a match penalty but other apparent head shots get nothing. Why are suspensions so inconsistent? Why are fines, if given out, so small?

The answer is one you would expect and one you may not: the NHL and the player’s union, the NHLPA. The latter may be a bit of a surprise given that you would expect a union to look out for its members. But I think there is a rationale for that too - just put a pin in it for now.

More specifically, a root cause of this ongoing problem is in the Contract Bargaining Agreement. Article 18 focuses on Supplementary Discipline for On-Ice Conduct. This article provide the regulations and requirements that the league and the players must follow with respect to discipline outside of the game itself. (Inside the game are the what the refs call, as per the NHL Rulebook.) Here is a link to where you can read a PDF copy of the CBA from the NHLPA website. From my reading of the two articles, there are perverse incentives that lead to the current state of inconsistent ruling on headshots and other suspension-worthy acts on the ice.

The first is in Article 18.5, which covers disciplinary alternatives that the league can issue based on preliminary review of evidence. There are four things the NHL can do: Nothing, fine the player, a suspension up to 5 games, or a suspension of 6 or more games. For the 0-5 game suspension, the player has a right to a telephonic hearing per Article 18.8. For the 6-or-more, then the player has a right to an in-person hearing per Article 18.9. For the fine, anything over $5,000 means the player can have a telephonic hearing but as per Article 18.7(d), which is the article that covers fines in more details.

Immediately, this explains why the fines in the NHL are so small. The NHL can absolutely issue larger fines. But since that gives the a player a right to hearing as per Article 18.7(d), which flows down Article 18.8, this requires evidence to be presented to the player, his representative, and even the NHLPA. Rather than risk all of that, where some one can question (and potentially appeal, I am not certain) why a fine over $5,000 is being issued when past fines did not go over that, the NHL just fines the player within that $5,000 limit and the situation is over. While there can still be a hearing of sorts, any challenge would favor the NHL. Given the NHL’s history of limiting fines that way, it can be defended in the sense that the NHL is being consistent in this sense. Even though you and I can agree that $5,000 is not much of a cost in a league where the minimum NHL salary is $750,000.

It is that same appeals process that also provides the incentive of the league to keep suspensions below six games. Even though Article 18.2(c) states that players repeatedly violating rules will be more severely punished, there is the following in Article 18.17 regarding automatic suspension per the playing rules. Like a match penalty for breaking Rule 48, which is what Connor Clifton received in October. Here is the key part:

The Commissioner or his designee may decide the appeal without holding a hearing, at his option. In the event that the Player’s discipline results in a suspension of more than five (5) NHL Games imposed on the Player by the Commissioner pursuant to this Section 18.17, the NHLPA on behalf of the Player may file an appeal to the NDA pursuant to the provisions of Section 18.13 of this Agreement.

18.13 details the appeals process to an arbitrator. This clause is also a part of Article 18.12, which is for any appeals to the NHL commissioner. Again, here is the key part:

In the event the League’s underlying decision results in a suspension of five (5) NHL Games or less, the Commissioner shall determine in his sole discretion whether any type of hearing is required related to such review, and if he determines such a hearing is required, whether to hold a telephonic or in-person hearing.

...

Except in cases involving a suspension of six (6) or more NHL Games which shall be subject to an appeal pursuant to Section 18.13 below, the decision of the Commissioner in an appeal shall be final and binding in all respects and not subject to review.

These two points gives the NHL the incentive to keep suspensions within 5 games whenever they can. Especially if a penalty given, like a match penalty, leads to supplementary discipline by default. Five games or less cannot be challenged. Whatever Gary Bettman decides is the decision. There is no appeal, there is no review beyond the hearing, and there is no further question. It is the path of less resistance as ruling for a longer suspension would require more evidence and a stronger argument by the league why they are breaking away from their past decisions. With each sub-5 game suspension for violent acts, that argument needs to be stronger. It also means it would take something exceptional to get more than a 5 game suspension. The NHL has got used to this reality and so I question whether or not they even considered something longer for a headshot or a violent act that injured a player. Their practices have led the NHL Department of Player Safety (DOPS) to be seen as a bunch of dopes. A reputation they have earned.

As a result, players can do a lot of damage to someone - like Connor Clifton to Nico Hischier - and get a fairly small suspension. The CBA has created this incentive for the league so they do not need to risk a more rigorous hearing and/or appeal process. Because the CBA is, well collectively bargained, this is part of what the NHLPA wants. The union has clearly decided that limiting fines of their members is in their best interest as is not being punished additionally by the league beyond five games.

This is ultimately a sad reality of the player’s union. In most industries, safety - direct and otherwise - is key part of why workers would form and join a union. It gives an opportunity for the worker to stand up for their well-being that management is not likely keeping as a priority. This can and does include discipline regarding workplace behavior, safety requirements on the job, ensuring sites and equipment are safe, and more. This also does mean that the union may have to stand up for some workers that they would rather not, but that is the point of any union. Everyone in it has to be protected. But the NHLPA (and other athlete unions) are different. Most industries do not have the workers try to hit each other as part of the job. And that has led to why the player’s union acts from a place of standing up to the NHL and its commissioner rather than what is in the best interest for most of its members.

Again, take the examples I gave at the top of the post. The NHLPA is in the unenviable position of needing to represent Jacob Trouba, Tomas Nosek, Michael McLeod, Ryan Lindgren, Nico Hischier, and Connor Clifton. It is not easy at all to do as all six of those players are at different points in their career, their value on and off the ice, their health, and their approach to the game. The sport pits these players against each other. This is why the NHLPA generally approaches such hearings, appeals, and more with the idea of keeping the league in check. While that is understandable, it also means the union is not doing much of anything for guys getting hurt from headshots. Even if their suffering would last longer than the fines or suspensions the hitters are or are not getting. Not to mention the potential internal fight between the hitter and who got hit. What side should the union take? Their answer, based on their actions, is neither as their focus is more about limiting what the NHL can do to the players. I would say that favors the ones throwing the hits. I would also say that it shows that the NHLPA has not made safety one their main priorities. (Aside: This is also reflected in past pushback regarding equipment mandates.) While I get why they are doing it, it makes this mess even messier.

Then there is another party in all of this mess: the referees. The ones who actually call the rules. While a fine or a suspension usually comes from a penalized play, it is not required. Still, keeping the game in order on the ice usually requires the officials to make some calls to at least punish the player and his team for breaking the rules. Sure, you may enjoy someone getting lit up, but that enjoyment goes away if it costs a team a goal. Coaches certainly will not like that. There are plenty of rules in the NHL Rulebook that governs all kinds of violent plays from specific fouls (e.g. high sticking) to more general ones like roughing, attempts to injure. The one relevant for this post is Rule 48, Illegal Check to the Head.

The latter was implemented by the NHL way back in 2010-11 specifically to address headshots. It was a result of previously violent hits to the head that did not actually break the documented rules, such as when Mike Richards put David Booth on a stretcher and when Matt Cooke put Marc Savard on a stretcher. Given the increase of awareness of CTE, having a specific rule to punish headshots was a good idea to have. However, as we saw with the Trouba hit on Nosek and the McLeod hit on Lindgren, there are outs from this rule. 48.1 has three circumstances where a referee has to consider in making this call, two of which point as to whether the player being hit moved their body or head that led to contact. Given that Nosek was trying to find a puck in his feet and Lindgren was trying to move it around, I do not think it is necessarily fair to let Trouba or McLeod hits go on because a referee has to make a live decision as to whether the victim contributed to their own head contact. Especially since both Trouba and McLeod could have just hit a different part of the body. (Aside: I may be able to be convinced McLeod attempting to go for Lindgren’s body, but it would be tough.)

This Rule 48 is amid 87 total rules that two referees have to manage at all times during a sport where a lot can happen within a second. I do not envy the job of a referee. However, the nature of this sport (and honestly almost all others) often means the referee has to “manage” the game instead of calling every single rule infraction. It is why warnings are given, and discussions with captains and coaches take place.

It also means that referees are at their own discretion for making calls, which is a constant source of frustration for any fan. Especially if something obvious, such as Curtis Lazar’s stick being knocked out of his hands, was not called. What that means is that some really nasty hits can go uncalled. And if something is not called, it would take quite a bit for it to get the league’s attention for further discipline. Procedures are only as good as their execution and rules are only as good as their enforcement. And a rule that is not called is not much of a rule.

To sum up, here is why the NHL is in this mess with respect to headshots. The referees may or may not call Rule 48, which has three considerations that may make it harder for a decision to be made in real time. The CBA between the NHL and the NHLPA provide perverse incentives for fines and suspensions. That has led to the NHL often taking a path of less resistance to issue both without much of a challenge from the player or their union. That has also lead to the NHLPA not having to decide which member they need to fight for and instead just focus on what the league may do - which may not be in the interest of some or most their members. The result are guys getting knocked out of games, the ones responsible are not being punished all that much or at all for it, and the league and the game (for many, the NHL is hockey) suffers for it. Especially if it is an important player to the team that suffers, such as Nico Hischier.

What are the solutions? Unfortunately, it may have to wait until a new CBA needs to be written. That would be the time for someone, likely the league, to push for higher fines and more of a range for suspensions. It could even document minimum suspension lengths for specific rules, such as Rule 48. I can understand and appreciate the NHLPA wanting to ensure there is an appeals process as well as a hearing process to give out the punishments. However, these punishments often do not fit the crime. All involved looks bad when a player gets taken out by a slash and the aggressor gets a couple of games or a fine that would not even cut into half of their per-day salary. I can understand the NHLPA may push back and it may require some other concession from the NHL. Yet, even for just headshots, the league discipline needs more room to maneuver to be both consistent and somewhat fair in punishing bad acts on (and off) the ice. The current incentives are not working even when the NHL tries their best to be consistent.

While it may be argued that headshots are not as common as they were before Rule 48, we know they do happen. It literally happened to Hischier about four weeks ago, who is only now possibly returning from the hits. And Clifton only got 2 games for his act. It may be time for the league to consider a simpler definition of Rule 48, one that more broadly states no intentional contact is allowed regardless of the target’s position or movement. The only exception to make would be for those where it cannot be avoided either by height difference or angle. Basically, I would like to see 48.1(ii) and 48.2(iii) removed. Likewise, I would like to see other rules be simplified where possible to make it easier for the referees to make calls. And then encourage those referees to make those calls and punish those who do not. Referees, as I recall correctly, are subject to post-game reviews for what they did and did not do. Since rules require enforcement to be effective, that is the right place to do so.

Of course, time will be needed for both. The CBA is not up until 2026 and modifying rules and enforcing a new standards for rules may need to wait until next season. I am open to suggestions for other changes and I thank those in the comments to the recap of the game against Our Hated Rivals for pointing out issues with Rule 48. I also thank you for reading. I hope you have a lovely Thanksgiving. The season resumes tomorrow. As well as another more Devils-related post that may or may not be well received.