Why It Was Neccessary

In his first article for The Cat’s Whiskers Panthers fan Andy Burnham argues that the reduction in Tyson Marsh’s five game ban was a neccessary outcome.

Thursday evening was interesting as Twitter exploded news that Cardiff Devils captain Tyson Marsh’s 5 game ban for a check to the head had been reduced to 2 games by an independent panel on appeal. I think it’s fair to say that few saw that as a realistic possibility, even those amongst the Devil’s loyal fan base.

A short while on though and my logical brain kicked in and asked how could that actually have happened? There was a lot of chat about new video evidence and the incompetence of an independent panel, but the more I thought about it, the more it seemed that this was an inevitable and necessary step in the evolution of DOPS.

In my mind there were two possible grounds for the appeal, one rooted in the incident and one in the process.

Let’s start with the incident. Was it incorrectly interpreted by the panel? Was it accidental? Were there contributing or mitigating circumstances? Did it look different from another angle? For me the original video footage looked damning from multiple angles, and the general reaction from fans around the league, Devils included, backed that up. Five games for that hit was probably one of the least debated DOPS decisions on Twitter this season. The only possible thing I saw was that Brad Moran was slightly low down which increased the chance of a contact to the head, but it was an avoidable incident and it looked like Marsh raised his elbow to lead with it, so a 60% reduction in the ban can’t realistically be linked to that.

That leaves process. For me the idea behind DOPS is correct, but we all know it needs to improve. Progress has been made since last season but there is still some way to go. I also think that the right to appeal is absolutely necessary both from a fundamental human rights perspective but more importantly, to help maintain balance within DOPS. The appeal has to be heard by an independent panel otherwise it is pointless. DOPS is the league’s vehicle for imposing sanctions on the players / clubs, so independent oversight is essential for a club to be able to mount a challenge and be satisfied that the outcome is equitable, whether they agree with it emotionally or not. It is no different to hearing a grievance in the workplace; it should be done by an independent manager.

So I get to thinking, if I am in Cardiff’s shoes, how would I appeal? Now I am no lawyer, but I understand a little bit about it. Much of the law of the land is derived from precedent, from situations that have arisen for which no specific and indisputable rules exist, and then you have to look at things a different way; what has happened before in this situation, how would the average person see it? Ice hockey itself works this way. There is the IIHF rule book but it is backed up by a series of mini case studies to help officials interpret the rule book in a consistent way. How well that operates in the Elite league is a whole different debate, but as a referee in an entirely different sport I have a good degree of empathy with the officials when they are being “coached” by all us armchair officials.

Putting aside my feelings about the hit and the thoroughly deserved 5 game ban, if I was setting up and independent assessment of the decision I could only go on two things:

1. How consistent is it with previous decisions that have been made?
2. How robust is the framework on which decisions are made and has it been appropriately applied?

We all know consistency is still an issue. If I was appealing, I’d roll out the video of the DOPS ruling on the Mikael Lidhammar hit earlier this season. It doesn’t really matter that the ban for that was possibily too lenient, the independent assessment will just ask itself if 5 games for Marsh is reasonable based on the Lidhammar precedent, and it is hard to argue that it is. The only option that DOPS then has in front of the panel is to admit that it was wrong on the previous incident, but it in that situation you would generally expect the independent review to find against DOPS. In real life, when case law precedent is deemed to be lacking, you generally see more formal legislation to tighten up and clarify the rules and reduce the reliance on judgement.

On the framework question, I can only assume it doesn’t really exist yet and this is the crux of why I think the ban reduction was inevitable. As an accountant, I work in a world where controls and frameworks, checks and balances are key, so for me DOPS needs a known set of tariffs, although I don’t think these necessarily should be made public. These need to be based on ranges to allow DOPS to exercise appropriate judgement around intent, severity, opportunity to avoid etc, and equally provision to add additional sanction for repeat offences. Ultimately DOPS is a pool of people and there will be variation in their assessment of incidents, but one of the best ways to drive consistency in the punishment is to make sure it has a solid framework around it. There may well be a tariff, but it is hard to believe that if there was then the gap between the Lidhammar and Marsh punishments would have been that wide.

Pull all that together and that’s why I think the reduction was inevitable and necessary. The independent panel don’t have to like what they have done, but the root cause in my eyes is that the framework in which DOPS operates needs more work, and therefore the panel had no choice. It took someone to test the appeals process to really flush this out, but it is part of the journey that DOPS needs to go on. There’s a lot of talk about the damage this has done to the credibility of the league and the open season that is going to ensue as vigilante justice prevails. Sure this is a setback, but as long as lessons are learned and improvement follows, then it had to happen. I’m a Panthers fan so of course I want to see a bit of comeuppance for Marsh, but what I really want is silverware and the best revenge is making sure we compete hard, don’t give DOPS a reason to look at us, and take the two points every game.

You can follow Andy on Twitter @ACB_47

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