As Brad Marchand readied himself to appeal the six-game suspension handed down by the NHL Department of Player Safety for punching Penguins goalie Tristan Jarry and poking him with the blade of his stick, he expressed remorse, but couldn’t mask his dissatisfaction with the disciplinary process.
The Bruins winger admitted that punching Jarry was stupid.
“I lost my cool, there’s no question about it,” he said. “I’ve been pretty good at doing that for the last number of years. But it was a really stupid decision on my behalf.”
He also knew the incident undermined a relatively long run of good behavior in his career, which had been marked by mischief from the time he was suspended as a rookie in 2011 for elbowing Columbus’s R.J. Umberger.
Advertisement
Marchand has now been suspended by the league eight times — the most of any active player. Before this season, he hadn’t gotten more than a warning since 2018.
The issue that nagged at Marchand wasn’t that he was disciplined, but that his history made the punishment steeper. The three-game suspension he received in November for slew-footing Vancouver’s Oliver Ekman-Larsson seemed, to him, to carry the weight of past sins. As much as the six-game suspension was a message as well as a deterrent, it also felt like a reminder that his record will always follow him.
He wasn’t wrong. By design, the NHL punishes players with prior history more harshly than those with a clean slate. To the Department of Player Safety, a player is considered a “repeat offender” for 18 months after the most recent incident that led to a suspension.
But the “repeat offender” label is used only to determine the amount of salary forfeited should the player receive another suspension; it has nothing to do with the length.
Advertisement
When the league and the players’ union discussed the current collective bargaining agreement agreed to in 2013, the top priority was economic issues, but the most heated debate after that was supplemental discipline — particularly repeat offenders.
Marchand is a part of a small but substantial group of players who are judged differently based on their track record. Since the 2013-14 season, 294 players have been disciplined by the Department of Player Safety. Of those, 78 have been disciplined multiple times and 32 have been disciplined at least three.
It is often assumed that once a player has cleared that 18-month window, his slate is clean. It’s not. The Department of Player Safety still has the ability to take a player’s disciplinary history into account.
A year ago, when Colorado’s Nazem Kadri received an eight-game suspension for a hit to the head of St. Louis’s Justin Faulk, Kadri tried making the case that his stretch of good behavior should result in a lighter punishment.
Kadri was unsuccessful.
“They don’t measure progress is what I’ve come to find out,” Marchand said. “And it goes back to the last one, that’s where I really found it out.
“We believe that the last suspension was very hefty. When I got three games, it should have been one based on the fact that I’ve turned my game around, become a pretty good player in this league. But again, you’re not going to escape the history part of it.”
Advertisement
Any changes will have to wait
While there is no specific formula for the severity of a player’s punishment, the Department of Player Safety is bound by the terms of the collective bargaining agreement, which were dictated largely by discussions among general managers at their March meeting. The issue of repeat offenders was particularly important to GMs in 2013, according to a league source, and the CBA signed that year reflects that.
Since the new CBA was signed, Marchand has been suspended six times and fined three — a total of 28 games lost and $1.4 million forfeited. The two suspensions this season cost him nine games and about $275,000.
Marchand went through the Department of Player Safety to try to learn more about the process, going through an appeal to commissioner Gary Bettman. (Marchand stopped short of an appeal to an independent arbiter, a wrinkle added in the current CBA.)
“I don’t think anyone really understands how the process works,” Marchand said. “It needs to change moving forward. It’s definitely something that’s going to have to be looked at in the next CBA, the way this process is done.
“Suspensions are getting deeper and deeper or bigger and bigger with circumstances and incidents. It’s going to be a process. It’s going to need some work.”
The 10-year agreement made between the league and the players was originally set to expire this September, but in July 2020 — the early stages of the COVID-19 pandemic — the sides extended it four more seasons. Any changes to the disciplinary process will have to wait until 2026..
Advertisement
“In the 2013 CBA, improvements were made specifically to the supplementary discipline process to allow players who received suspensions of six or more games to ultimately appeal to an independent arbitrator,” said Jonathan Weatherdon, the union’s senior director of communications.
“Any potential revisions to the process are subject to collective bargaining between the league and the NHLPA, and the players will decide if this is an issue they want to further address.”
Restorative intentions
While players question whether punishments are too harsh, the NHL continues to evaluate whether its system is working as intended.
In theory, a disciplinary system in which three out of four people who are punished are never punished again could be considered a success. The game has changed dramatically. Goons, once commonplace, are relics of a bygone era.
In reality, recidivism is more nuanced.
The Department of Player Safety set its mission on making the game safer while maintaining the physicality at its core. Its punishments are meant to deter players from repeating certain behavior.
In terms of cleaning up the game, some of the league’s efforts have been effective. In the 2013-14 season, 14 of the 43 suspensions were for illegal hits to the head. Last season, there were only four.
The Department of Player Safety is transparent. Explanations are public. Dialogue is encouraged. In fact, Washington right winger Tom Wilson — a lightning rod who has been suspended five times and fined twice since entering the league in 2013-14 — has spent time with members of Player Safety going over video and discussing how to avoid problems in the future.
Advertisement
But disciplinary systems — whether in sports, business, education, justice, or even family — are obligated to restore the person being punished.
“The goal is definitely restorative,” said William Gould, professor of law emeritus at Stanford Law School, who specializes in labor and discrimination law. “Even though you’re inflicting punishment on the player — or on the employee, they suffer loss of income — you’re still trying to work with him to get his act together so the problem will not recur.
“That’s the whole idea. That’s why very often these agreements will say you’ve got to counsel this guy, you’ve got to work with him.”
Marchand acknowledged that his incident with Jarry was a lapse and a backslide, and that perhaps he became “complacent” after three trouble-free years. He returned from his six-game suspension remorseful but also aware that his history matters.
“What it does is it sets it up,” he said. “If there’s another one, it’s going to be 10.”
Julian Benbow can be reached at julian.benbow@globe.com.