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Monday, August 15, 2011

"Let 'em Play" and Hockey

I read with great interest Professor Mitchell Berman’s series of posts on the Volokh Conspiracy discussing his new article, “'Let ‘em Play': A Study in the Jurisprudence of Sport.”  The article, as I understand it, explores fans' expectations in professional sports that certain rules of the game will be enforced less strictly at critical moments in the contest, such as the last minutes or seconds of a close match.  Umpires and referees interfering less in these critical moments, the theory goes, fosters the impression that the players themselves are responsible for the final outcome of the match.  Professor Berman’s goal, at least in part, appears to be to examine how these norms with respect to the non-enforcement of rules in the sports realm can or should apply to the legal system.  As an avid sports fan and prawf, I appreciate very much his serious treatment of the potential relationship between sports and the law.

Professor Berman uses several professional sports to illustrate this concept of “temporal variance,” including tennis, baseball, football, soccer, and basketball.  Largely absent is ice hockey, which Professor Berman admits he isn’t as familiar with and thus hasn’t incorporated as much into his substantive discussion. 

I happen to a huge hockey fan and religious follower of the storied Montreal Canadiens.  I generally watch (via a cable hockey package) seventy-five to eighty of the Canadiens’ eighty-two regular season games, and have enjoyed for over an aggregate decade season tickets to two other NHL teams.   All in all, I’ve probably watched well over a thousand NHL games in my life.  Below, I’d like to offer some informal thoughts, based entirely on my observations of live and broadcasted games, on “temporal variance” and the non-enforcement of rules in hockey.

I generally agree that, in professional ice hockey, some expect referees to call less infractions in the last moments of a close regular season game relative to the rest of the game, and in playoff games relative to regular season games.  While "temporal variance," as a factual matter, may exist in professional hockey, I am skeptical as to whether "temporal variance" should be part of professional hockey.

First, for me consistency in the enforcement of rules is a value that trumps any intentional abdication of rule enforcement in the last stages of a tight game.  Referees possess a lot of discretion in calling penalties.  The question is not how that discretion is used only in the last, critical moments of a game, but how that discretion is used in the last moments compared to how it was used in the prior bulk of the game.  Some fans may not be pleased, for example, if a referee called an infraction in the earlier moments of the game, but then let a similar infraction committed by the other team "go" when the game is on the line, even if doing so is consistent with the "temporal variance" expectation.  If referees are consistently strict or lenient throughout the game, there may be greater acceptance of a call (or non-call) in the last moments.  Such context-neutral application of the rules would seem to give the referees enhanced credibility and ability to claim that they objectively handled the game.  That evenhandedness or consistency may provide greater assurance that the outcome of the game can be attributed to the players, not the referees. 

Second, "temporal variance" pays insufficient weight to the enforcement or non-enforcement of rules in earlier moments of a match.  The last moments have been shaped and determined by the preceding moments.  A hockey game has certain ebbs and flows that are no doubt impacted by referees’ calls or non-calls throughout a game.  The last moments are the culmination of everything in the game that occurred previously. A penalty called in the beginning of a game can have a profound impact on the direction and contents of the rest of the game.  "Temporal variance" gives the false impression that it is only in the last moments that referees can influence the game when, in fact, referees have been taking part throughout the game in determining the opportunities available to and disadvantages to be imposed on particular teams.  As referees already have impacted the game by making their calls in the earlier moments of the game, it may be that what has changed in the last moments of the game is only some fans’ sensitivity to that potential last-minute influence. 

Third, one of the costs of referees "putting their whistles away" in the last moments of a game is that referees effectively reveal that they are doing something other than dispassionately and objectively calling the game.  They are signaling that they can and do intentionally manipulate the entire game if they are intentionally "hands-off" in the last moments.  If they are "activist" in one instance, they open the door to the view that they are "activist" in all.

Fourth, Professor Berman seems to posit that "temporal variance" may be explained by an interest in rewarding the "competitive excellence" of players.   It is not fully clear, however, what constitutes "competitive excellence" in hockey.  In the other sports noted by Professor Berman, generally no or minimal physical play is tolerated, yet "temporal variance" may permit a greater degree of physical play.  In hockey, physicality is not condoned only in the last part of a close game.   Rather, in hockey, physicality is integral to the entire game.  In fact, hockey players are commended for their physicality, such as their ability to deliver body checks in open ice.  Of course, on the other hand, speed and skill are prized in hockey.  This is not an either-or situation – hockey blends both physical play and speed/skill.  This is to say that "competitive excellence" is a complicated issue in professional ice hockey, and the physical component is not an inherent evil but a regular feature that is generally penalized when it goes too far.   

Fifth, finally, and perhaps most importantly, the impact of non-enforcement is not limited to the perception of referees' proper role in handling a game (e.g., whether they are impartial) or whether the players have decided the game.  It also impacts perceptions as to the integrity of the entire league.  Recent non-enforcement of rules during two periods of time other than the last minutes of a game or the playoffs demonstrate the costs that non-enforcement may have on the league as a whole and thus the fans' qualitative experiences with respect to the NHL.

The first of these time periods is after a regular season game is completed, when the league has an opportunity to consider and issue supplemental discipline for potential infractions that occurred during a previous game.  This past season, Canadiens’ forward Max Pacioretty was trying to skate past Zdeno Chara, a Boston Bruins defenseman and the largest player in the league, when Chara drove Pacioretty into a partition separating the two players’ benches.  Pacioretty suffered a severe concussion and broken neck, and missed the rest of the season and playoffs.  Chara claimed, incredulously, that he did not know the partition was there and that he was innocently trying to separate Pacioretty from the puck -- which, incidentally, was in another zone.  There was no legitimate basis for the hit, as the puck was far away and Pacioretty was entitled to skate without obstruction.  Chara was not given any supplementary discipline.  In all my years of watching hockey, that single non-enforcement decision did more to undermine the credibility of the league than anything else I can recall.  The league effectively “let ‘em play,” though in doing so diminished the respectability of the NHL.  Indeed, the NHL lost sponsors as a direct result of its unwillingness to sufficiently enforce its rules against Chara.  It likely lost fans as well.

Worse, non-enforcement emboldens players and invites them to test the limits of acceptable play with even more objectionable, unsportsmanlike behavior.   This is exactly what occurred in the playoffs, in between whistles when the play is officially over though players still interact.  The Bruins won the Stanley Cup this season in part because they used their superior physical strength to intimidate and wear down the opposition.  The referees' unwillingness to police the Bruins’ spearing, cross-checks, and jabs that took place after play was over only empowered them to act more aggressively and brazenly.  Unrestrained by the referees, the Bruins, unsurprisingly, took advantage and were able to quell the skilled play of the Canucks’ forwards.  The Canucks engaged in some of the “less than honorable” conduct as well, though the Bruins due to their team strength, size, and attitude did so with greater frequency and severity.  The Bruins, to their credit, played within the bounds that the referees impliedly established by way of non-enforcement; and the Bruins were not going to regulate themselves and limit their physical competitive advantage if the referees were not going to. 

All told, the competitive excellence that the league therefore rewarded, through such non-enforcement, is the bullying style of play exemplified by the Bruins.   This, to me, is a regrettable development, one that tips the balance too heavily in favor of the brute and to the detriment of the skilled. As Andrew Cohen noted in The Atlantic after the Pacioretty-Chara incident, the league's excessive non-enforcement will end up resulting in the loss of life of an NHL player.   "Let 'em play," thus has serious consequences broader and more important than the perception of who is responsible for wins or losses.

One may completely discount my take on the non-enforcement of rules within hockey because of my affinity for the Canadiens and commensurate hatred for the Bruins (sorry, Professor Somin).  I hope nonetheless that some readers may think twice about whether "temporal variance," and non-enforcement generally, is a normatively appealing value in professional ice hockey.

Posted by Dawinder "Dave" S. Sidhu on August 15, 2011 at 10:12 PM in Sports | Permalink


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I really wanted to send a small word to say thanks to you for the fantastic points you are writing on this site.

Posted by: gmail login | Feb 17, 2020 9:15:57 PM

As a third year law student and avid hockey fan, I read with great interest both your and Professor Berman's posts. May I add up front that I (a die-hard Buffalo Sabres fan) share your disdain for the Bruins. As a hockey blogger, my focus has primarily been on the Sabres, but my blogging partner and I have developed two series of posts that dovetail nicely with your conclusions here: one on the rulebook and one on the CBA (our Chara-Pacioretty post, written primarily by my partner, aligns perfectly with your analysis).

A common problem that I've encountered is not only temporal variance, but variance from the standards that are explicitly set forth in the rulebook itself. A simple exploration of the language of rule 76.6 (face-off violations) bears this out. While it is somewhat understandable that there will be some variance where discretion is given to officials, ignoring rulebook provisions outright is problematic.

Further, many of the issues with regard to enforcement (or lack thereof) begin with the rules and procedures in place themselves; for example, last season Rule 48 (the new "blindside hits to the head rule") applied only in a very narrow set of circumstances. Further, the tremendous amount of discretion granted to a single individual for issuing fines and suspensions only exacerbates the issue of inconsistency in enforcement. The league would be better advised to use a committee for their on-ice commissioner discipline proceedings and decision making (see Article 18 and Exhibit 8 of the 2005 CBA).

The League (through the Competition Committee) has since broadened the scope of Rule 48 by removing the phrase "lateral or blind side," but real improvements in ensuring consistent, predictable enforcement of the rule may be secured by changing the factors by which the decision to issue supplementary discipline is rendered. Those factors are currently (1) the type of conduct, (2) injury (this should be red flagged), (3) offender status (again, there are issues here) (4) the game situation, and (5) "all other factors."

I have a major issue with the injury component, as a player should not be punished for injuries beyond what would normally result from his conduct, nor should a player be rewarded for his luck if his egregious conduct does not result in injury. I do believe that players should be responsible for the consequences of their actions, but the severity or presence of injury without reference to the likelihood of it resulting from the conduct involved is simply wrong. As for the previous offender status factor, that should be relevant only in the punishment phase, not the guilt phase.

Removing or modifying these factors, as well as designating a committee rather than an individual to make the decision, would improve consistency and therefore aid in the NHL's quest for legitimacy. On-ice enforcement consistency can be achieved through simple training of officials, rulebook amendments, and the establishment of league standards to that effect.

One last thing (I, like you, couldn't resist!): http://www.youtube.com/watch?v=WBHRJS_kUqY

Posted by: Colin Bruckel | Sep 4, 2011 5:39:26 PM

The Rangers should be fun to watch this year with Brad Richards in the lineup. Ryan Callahan is one of my favorite non-Habs in the league. King Henrik is solid in the nets and a class act overall.

I hate to do this, but I can't resist: http://www.youtube.com/watch?v=zACGht3qfXA

Posted by: Dawinder "Dave" S. Sidhu | Aug 18, 2011 11:45:13 AM

Temporal variance just seems to be one facet of a far bigger problem of inconsistency in enforcement (which is true of both the NHL and federal courts). Some players receive far more attention from referees than others; some teams more attention than others (e.g., home teams versus away teams -- a wonderful analogue to diversity jurispdiction). As a diehard Rangers fan, I wish ill upon the Habs, Bruins, Fishsticks, and Devils, among others, but can anyone truly believe that the best team in the NHL won this year's cup?

Posted by: Norman Williams | Aug 18, 2011 12:59:02 AM

Great read. I too am a Habs fan and watch 99% of the regular season games. The Pacioretty incident was the most frightening incident in professional hockey I have ever seen! There was only 15 sec. left in the 2nd period and a faceoff was won by Bruins in Habs zone. Puck went wide of Chara, Pacioretty used his speed poked the puck ahead and continued forward. Chara, using his size and strength and being a superior defensemen in the NHL interfered with Pacioretty. Chara didn't have to use a full body check in that play. The puck was 30 feet ahead in the Bruins zone. Pacioretty was then a passenger and went face first into the partition which Chara "didn't know was there". Pacioretty could have been killed...MILLIMETRES FROM DEATH...LITERALLY! Patches lay motionless and it was scary! Never have I seen such a violent play in hockey...maybe the Bertuzzi one, but this was something that Chara was trying to cover up while doing the duty. I still get angry when I think of how a team like the Bruins won the Cup and how Chara didn't get any supplemental discipline. Same with the "let em' play" aspect in the Cup finals. Ref's were told to call all extra curricular activities after the whistle. I remember watching Marchand punching Sedin 4 times in the face on HNIC and the ref just brushes it off. The NHL shouldn't be proud to have Boston as the Cup champs cause they weren't the best "hockey team". That means skill, speed and physical. Vancouver was that team and lost because of the intimidation factor and the ref's. Boston just stayed the healthiest and played the system with Campbell's daddy. Terrible.

Posted by: BONZOHABS | Aug 17, 2011 11:00:30 AM

Many thanks for these comments.

D.Schleicher, I agree that a power play in the last moments of the game can be advantageous -- it can enhance the intensity of these moments and increase the likelihood that a goal will be scored, and consequently that the game will be sent to overtime, which is itself an exciting five minutes (or less). My hope would be that officials' calls in these last moments are consistent with how calls have been made throughout the game. Second, I understand Professor Berman's point about rewarding "competitors' relative excellence in the performance of the sport's fundamental athletic tests." In hockey the situation is more complicated compared to other sports because the athletic tests in hockey include skill/speed and physicality. The league has constantly struggled with how to balance the two and new rule changes (e.g., regarding holding and hooking) would seem to suggest that the former retains significantly higher value. The present system of non-enforcement that we witnessed this past season and in the playoffs, however, is suboptimal and too heavily tilted in favor of physicality to the detriment of fans' enjoyment of the game, to the credibility of the league as a whole, and to the well-being of the players.

Professor Boyden, Don Cherry's views on penalties can be fairly summarized as follows: NHL rules shall be enforced, except where the infraction is committed (1) by a member of the (a) Toronto Maple Leafs or (b) Boston Bruins; or (2) against a player who (a) is French-Canadian, (b) is European, or (c) wears a face-shield.

A final note: Rick Rypien, a former Canucks' forward, was found dead at the age of 27. Rypien was one of the league's most willing fighters. With his apparent suicide and the recent death of Derek Boogaard, another pugilist, I hope the NHL takes greater interest in providing robust mental health services and resources to the game's gladiators.

Posted by: Dawinder "Dave" S. Sidhu | Aug 16, 2011 12:44:20 PM

I found this post particularly interesting given that my first vivid memory of an argument about "temporal variance" was Don Cherry insisting ad nauseum that some penalty should not have been called against the Canadiens in the final minutes of one of the 1989 Stanley Cup finals games against the Calgary Flames, because it was away from the play. I think it was high-sticking or something; I remember the replay showing the player being checked into the boards. It seemed to me at the time that the penalty was particularly egregious *precisely because* it was away from the the play, and therefore completely unnecessary. Ever since, I've been presumptively opposed to (a) temporal variance, and (b) Don Cherry.

Posted by: Bruce Boyden | Aug 16, 2011 11:16:56 AM

Interesting. One thing to add, though it veers from Berman's claim that the jurisprudence of sport is based on a core interest that "outcomes of contests reward competitors’ relative excellence in the performance of the sport’s fundamental athletic tests." Hockey is unique among sports in penalties making the game more rather than less exciting -- the power play is terrific, and 4 on 4 may be even better. (Compare soccer, where the penalty kick and to a lesser the degree the free kick ruin the flow of the game and have an outsized effect on the result, or basketball and the foul shot.)

To the extent that officiating should attempt to maximize the viewing experience (and there is evidence that it does as a positive matter, with home teams and teams that are behind getting better calls, as seen here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1377964), hockey officials should call more penalties during crunch time than during regular old, barely watched regular season game. A higher rate of penalties would lead to more power plays, more scoring (which falls during the playoffs) and more 4 on 4. And that ignores the deterrent effect it would have, opening up the game and leading to a higher-paced, more open game.

And officials should definitely have called more penalties on the Bruins, who brutalized my Canucks.

Posted by: D.Schleicher | Aug 15, 2011 11:10:34 PM

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