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NHL Instigator Rule Severely Lacking In Consistency, Legitimacy

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As some of you may know I am currently residing in Houston, Texas while attending vigorous training for my new profession as an engineer out on the oil rigs. My class is mostly engineers from the United Kingdom, and I've enjoyed spending time with these guys as we get to know the many differences between the U.K. and the United States. While it seems I'll never be able to convince them that American Football is a legitimate sport, a number have become very interested in this incredible game we like to call hockey.

Last night, while watching the great game between the San Jose Sharks and the Dallas Stars, a fight broke out between Mark Fistric and Mike Moore. Moore had just laid out a thunderous hit on Steve Ott and Fistric wasn't too happy; he went after Moore and the two dropped the gloves. Fighting majors for both. After the fight, a couple of the British fellas asked me the legalities of starting such a fight and I had to explain the instigator, clean hits, how it's rarely called and how technically such a fight is illegal. It happens from time to time, I reasoned.

Later in the game, however, Jamie Benn sent Joe Thornton crashing to the ice with a debilliating -- yet clean -- open ice hit. As he was skating away Devin Setoguchi took offense to the hit and went after Benn; both players were hit with a fighting major and nothing else. Once again, the British guys asked if that was legal.

My response?

"Technically, no. But the NHL doesn't seem too concerned with consistency, so it doesn't matter anyway."

This is where the fundamental problems of the instigator penalty come from, showing how this penalty is perhaps the worst rule in the NHL -- both in theory and in the enforcement of the penalty as it's written in the rule books.

Straight from the NHL rule book on

46.11 Instigator - An instigator of an altercation shall be a player who by his actions or demeanor demonstrates any/some of the following criteria: distance traveled; gloves off first; first punch thrown; menacing attitude or posture; verbal instigation or threats; conduct in retaliation to a prior game (or season) incident; obvious retribution for a previous incident in the game or season.

A player who is deemed to be the instigator of an altercation shall be assessed an instigating minor penalty, a major penalty for fighting and a ten-minute misconduct.

Now, the actual NHL rule book contains -- apparently -- much more detail than is found on the league's own site but this is all we have to go with.

The key part of this rule is the very specific wording in regards to retaliation: "obvious retribution for a previous incident in the game or season." If a player puts a clean and legal hit on another player and then is attacked or goaded into a fight because of said hit from a teammate of the felled player, then is that not obvious retribution for a "previous incident"? Why should a player, who has just made a clean and legal hit in open ice during the normal course of the game, have to fight a teammate of the player he just hit and then subsequently be sent off the ice for five minutes?

There are a couple of fundamental issues with this rule and situation at play here. The most obvious one is the culture that currently exists in hockey that anytime a big hit is made -- especially against a star player -- then the offending player will be made to answer for his actions and generally in the form of a fight. He'll be "challenged" and he'll feel that he has to stand up for himself and answer for the hit he just made. This is the "honor" that players supposedly play with and the system of the "players policing themselves" that many tout when defending these sorts of actions.

Yet if a player such as Jamie Benn, who is so important to his team, makes a big open ice hit and then fights to defend this hit, is taken off the ice for five minutes then the team has now essentially been punished for the hit that occurred. I'm sure the Sharks will make the trade off for Devin Setoguchi leaving the ice if Jamie Benn is off the ice as well. Yet because Benn made a big hit, because he defended his "honor", the Stars ended up with the short end of the stick. In fact, the Stars were forced to go on the penalty kill when Steve Ott was called for slashing during the ensuing scrum.

It's this sort of mentality that the NHL is supposedly attempting to fight against. The NHL wants there to be fighting -- it's fun for the fans and it's very exciting for the sport in general -- but only when it is between two players who have agreed to fight each other. One player being jumped for a clean hit is not what the NHL wants to promote, and this is exactly what the instigator is supposed to be used for.

Last season the NHL made an early push to enforce this rule and to curtail the amount of fights that were occurring immediately after a big hit. Per Terry Gregson, the NHL's Director of Officiating (remember this was the start of last season):

It's not new. We're not changing the wording and we're not trying to make every fight an instigator call. But if a player travels (to start a fight), you have to ask 'did someone clearly instigate?' And if so, apply the rule. Now, even when there are clean hits, there seems to be retaliation going on.

What was frustrating at the time was that the rule was being enforced when players responded to dirty, illegal or dangerous hits. Instead of enforcing the penalty against players starting fights after a clean hit, players such as Tim Gleason with handed 17 minutes worth of penalties for challenging Dan Carcillo after a particularly dangerous instance of boarding.

Earlier this season, Dallas Stars fans witnessed Mike Ribeiro taken out with an extremely obvious and blatant elbow to the side of the head. That hit was not called yet the retaliation certainly was; Adam Burish was hit with the instigator penalty and a misconduct when he took on Dennis Wideman in a fight. The dangerous elbowing went uncalled yet the retaliation was swiftly punished per the letter of the instigator penalty in the rule book.

So we have one player hit with the penalty while defending his teammate per the long-standing "code" of the NHL, yet last night we have two go uncalled (one against both teams) when fights are started after clean open ice hits.

Like most things that have to do with discipline in the NHL, it makes no sense.

So what is to be done?

One option is for the NHL, like it should be done with every rule that they have, is for the officials to call the penalty exactly as it is written in the book. Of course, if that were so, we'd have instigators for players just dropping the gloves first or penalized for yelling to loudly at one another during a scrum. We know that's not going to happen, not ever, yet we expect officials to call this rule by only heeding one part of the rule as it's currently written? No wonder the rule is the most inconsistently called penalty in the NHL.*

*Incidentally, the Edmonton Oilers have been hit with five instigators in 16 games. How's that for consistency across the league?

The other option is just strike the rule completely from the book. If the NHL refuses to consistently enforce the instigator in what is apparently a means of curtailing instant retaliation for big hits, then why have the rule at all? Why have a rule in the NHL rule book if the officials either don't know how to call it consistently, are afraid of upsetting the "code" of the game or just don't feel like having to determine if a player truly did "instigate" another player into an altercation?

What I love so much about hockey is how the players are allowed to police themselves -- to a point. It used to be that if a big hit were made in a game the opposing team would respond with a big hit of their own. Perhaps that player would be challenged to a fight later in the game and forced to back up his decision to lay out a star forward. Yet we are seeing way too many instances of players being attacked immediately after a big hit is made; if it's a clean and legal hit there's just no need for a player to instantly be attacked and basically forced into a fight.

There are many rules that the fans and players don't agree with. That's going to happen in any sport around the world. Yet if the NHL is going to have these rules then at the very least the league should attempt to maintain some sort of consistency across the board while enforcing the rules it's chosen to adopt.

Of course, if anyone has followed hockey and the NHL for longer than a season, then we all know that asking for consistency from the NHL is about as useful as asking Sean Avery to just settle down and play hockey like a normal human being; it's just not going to happen.