Appeal process tricky for Sabres' Patrick Kaleta | Hockey | CBC Sports

Hockey Night in CanadaAppeal process tricky for Sabres' Patrick Kaleta

Posted: Monday, October 28, 2013 | 08:47 AM

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Patrick Kaleta (36) was suspended 10 games for an illegal hit to the head of Jack Johnson on Oct. 10. (Jen Fuller/Getty Images) Patrick Kaleta (36) was suspended 10 games for an illegal hit to the head of Jack Johnson on Oct. 10. (Jen Fuller/Getty Images)

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It is believed that suspended Buffalo Sabres forward Patrick Kaleta, agent Anton Thun and the NHL Players' Association will discuss the next step in the appeal process sometime Monday.

By NHL law, Patrick Kaleta of the Buffalo Sabres doesn't need to decide whether or not to appeal his 10-game suspension until Wednesday.

That's seven days after league commissioner Gary Bettman upheld Brendan Shanahan's original ban. But there may be more clarity on Monday.

It is believed that Kaleta, agent Anton Thun and the NHL Players' Association will discuss the next step in the process sometime during the day. And according to a couple of sources, there is a possibility that Kaleta will decide to accept his punishment and move on. That would be a surprise.

Under the new collective bargaining agreement, the players fought for the right to have an independent arbitrator get final word on any suspension longer than five games. It was considered a Darryl Dawkins-level slam dunk (Google it, his glass-breakers are timeless) that the first time there was an opportunity, the NHLPA would go for it.

Kaleta is the first. But the language of the law may work against him.

The key section of the CBA is Article 18, Section 13 (c), which I have edited for clarity:

"The [arbitrator] shall hold an in-person hearing and shall determine ... whether the length of the suspension imposed [was] supported by substantial evidence."

The words "substantial evidence" are critical. In a very interesting move, the NHL decided to publish Bettman's 17-page decision.

You can always find a lawyer willing to disagree with what another lawyer writes - for a fee, of course - but Bettman delivers a strong argument, framing why the hit should be suspendable, spending several pages detailing Kaleta's history and illustrating how suspensions to other players (Andy Sutton, James Wisniewski) grew as they became repeat offenders. It looks like "substantial evidence" (It should be noted my legal background includes precisely one LSAT prep class, so expertise is limited).

Kaleta could get money back if the arbitrator rules in his favour, but he's still going to miss 10 games. It might be better for him to eat it and move on. As for the NHLPA, lawyers love precedence. If they lose this one to the league, does it make it harder to win in the future?

There's another side to this, too.

Quietly, the NHL, concerned about litigation as much as anything else, is working very hard to enforce the game as much as the rulebook allows.

It held a conference call with the general managers, demanding players be told to keep their helmets on during fights. We've now seen instances where linesmen, when possible, jump in to stop fights when helmets are about to be removed.

There was little call for Kaleta to be punished when he hit Jack Johnson. It went almost unnoticed. Same for New York Islanders forward Michael Grabner, who got a two-game suspension last week.

Normally, Twitter blows up when this stuff happens, but there was almost zero reaction in those cases. Shanahan and his lieutenants are watching closely.

Niklas Kronwall told a Swedish reporter he was partially at fault for a hit he received from Cody McLeod, but the Colorado Avalanche forward still got five games.

"I agreed with Kronwall," said one GM who supported the suspension, "but how many stretchers did we have last week? We have to get that hit out of the game."

It should be pointed out that Shanahan -- no wuss as a player -- has made at least three "accidental collision" rulings this year, so he's not turning into a total softie, but this is an indication of where the league wants to go, ie. as much protection of the head as possible.

The NHLPA believes very strongly that even an unpopular player like Kaleta deserves a full defence. The lockout may be over, but hard feelings remain and people on both sides still want whatever victory is possible over the other.

Releasing the Bettman ruling is a new strategy from the league, an attempt to tell the players, "We're the ones who really care about your safety because we're trying a punish a repeat offender, not make excuses for him."

I don't know if it will work, even though there are players unhappy with what the union is doing. It's certainly possible Kaleta decides to go ahead with his appeal, but there are good legal and practical reasons to back away from this one.

Follow Elliotte Friedman on Twitter @FriedgeHNIC

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