Gross Misconduct and the Boundaries of Gamesmanship
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When I played hockey, I was far from a candidate for the Lady Byng Trophy. As a referee, I was no Emily Post about hockey etiquette.
Elbows may not belong on the table during meal time but, from the time of Gordie Howe down the line, they have a place (within reason) in players creating a little extra space for themselves. The lost old-school art of defensive use of the stick as a shield not only did make the game safer but actually had the opposite effect of making the Tom Wilsons of the hockey world that much more brazen about coming in "borderline" high when they deliver hits.
There is has always been a factor of psychological intimidation in the game; chirping opponents (within boundaries that have shifted somewhat due to changing times and socially accepted standards) was and still is a part of the game. If you can goad an opponent into taking a bad penalty or getting off his game in other ways, it's part of the game within limits.
However, the whole spectacle of Brad Marchand licking opponents during the playoffs in an effort to try to shock or anger them into some sort of retaliation fell way out of line with anything remotely acceptable in either societal or sporting norms.
I do not know the exact reason why the Gross Misconduct penalty, under which this sort of action would have been fallen, was eliminated from the NHL Rule Book some years ago. The penalty still exists in other leagues. Perhaps it was seen as overlapping with Match Penalty conditions (such as spitting, hair pulling, etc) as well as the unsportsmanlike conduct penalty standards and the ability to escalate an unsportsmanlike conduct penalty to a misconduct.
Nevertheless, there are actions that are thankfully uncommon on the ice but best could have been classified under the term "gross misconduct." Do we really have to quibble over the Rule Book explicitly banning spitting on an opponent (match penalty) or an official (which falls within "Abuse of an Official" with an automatic suspension protocol), but not in a player putting his saliva on another player by licking their face? If there's a Gross Misconduct penalty, it covered penalizing such clearly repulsive and out-of-line behavior better than the "unsportsmanike conduct" category, which covers out-of-line but fairly routine behaviors in the heat of battle.
As far as Marchand's post-playoff pledge to "cut that [nonsense] out" -- which he had pledged in the past and promptly forgotten when it comes to slew footing, drive-by headshots and other opportunistic intent-to-injure plays -- it is ridiculous that a player should even need to be told that licking an opponent is an embarrassment to the team and the game.
Listen, I get why Bruce Cassidy did not bench Marchand. At the collegiate and junior levels, some coaches still sit out players (even stars) for disciplinary actions that do not involve potential league supplementary discipline. At the pro level, players expected to know the boundary lines. Moreover, there is too much at stake -- especially in the playoffs -- for coaches to feel emboldened to bench a star player.
Even so, there are limits. We're not talking about Matt Cooke or Raffi Torres eventually getting in hot water with the league because of serial recklessness or a chronic diver trying to draw penalties, or even about Marchand's slew-footing and other unacceptable actions that show serial disregard for others' safety.
The licking incidents took Marchand into the ream of Sean Avery: a total lack of respect for the game itself, for simple decency and even for oneself. Back when I was refereeing in the NHL,
Matthew Barnaby did and said some pretty overboard things during his playing days but even he never would have licked an opponent's face to try to anger them.
There is also a context for everything.
When I played for the Quebec Nordiques, we had a game in Detroit where multiple fights broke out on the ice. Back in those days, it was standard during a fight for everyone on the ice to grab onto an opponent. Well, on this night, Red Wings forward Peter Mahovlich sought out my teammate, Marc Tardif.
Pete took hold of Marc's sweater. Then he kissed Marc right on the lips.
Everyone on the ice forgot about the fight. Lots of guys, Marc included, started laughing. Nothing was meant by it -- Pete and Marc were old teammates on the Montreal Canadiens and good friends, and Mahovlich was just goofing around.
In a situation like that, there is no "gross misconduct". However, change the conditions a little bit -- let's say, rather than licking two opponents to incite them, Marchand planted a Godfather-style "kiss of death" on Leo Komarov and Ryan Callahan. In that case, it falls out of acceptable boundaries.
Even the act of spitting can have a context. I can't even estimate the number of times in my career as an official when I was accidentally spit upon as I skated by a team's bench at exactly the wrong moment. Someone took a swig of water, swished it around and spat it out right as I went past. There would be a quick apology, and that would be it.
One time in my officiating career, however, a player deliberately spat on me: Tampa Bay Lightning forward Chris Gratton. I wasn't going to let that one slide. I gave him an abuse of an official penalty and a three-game suspension.
To steal a line credited to baseball's Casey Stengel, Gratton got more than he expectorated. Actually, he got less. I had to stick to the Rule Book protocol -- the abuse-of-an-official discipline scale is the only one that carries an automatic referee-determined suspension, with escalating levels of severity. Gratton's actions fell in the three-game distinction.
Paul Stewart holds the distinction of being the first U.S.-born citizen to make it to the NHL as both a player and referee. On March 15, 2003, he became the first American-born referee to officiate in 1,000 NHL games.