- Terry Frei, Special to ESPN.com
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OK, we'll buy this: The public, if not justice, has been served. In
British Columbia, the Crown did the right thing, negotiating a plea bargain
with Todd Bertuzzi and leaving him with a light slap on the wrist.
Plus, Steve Moore should be more forceful about considering a
lawsuit only as a last resort.
That comes with a kicker, or maybe we should call it an implied NHL
plea-bargain with the public. The NHL must put itself on trial, further
examining the effects of the "code" mentality that were at the heart of what
happened on March 8 in Vancouver.
In arguing that the sport doesn't belong in the courts, the NHL's
position always has been: "We can handle it."
All right, prove it.
Before we go on, the stipulations of background: This is being
written from snowy Denver, and comes from the keyboard of a writer who was
at General Motors Place that night, and was along for the ride when the
Colorado Avalanche visited Moore the next morning in a Vancouver hospital.
I've been to the Thornhill, Ontario, rinks where Moore played his
minor hockey as a kid obviously destined for greater things, both on and off
the ice. Now his career probably is over, even if he "recovers," because a
physically suspect marginal winger is not a hot commodity.
I believed Bertuzzi should be suspended for a year, and still do.
And the clock shouldn't restart until the NHL is playing again.
I'm adamant that the blame goes far beyond Bertuzzi -- at least to
Vancouver coach Marc Crawford and former Canucks general manager Brian
Burke, who did nothing to put the brakes on the vigilante atmosphere that
led to this mess.
The actions and words of Burke, otherwise a brilliant man who
combines the sort of hockey background and intelligence that the sport so
sorely needs, were especially puzzling and went far beyond a somewhat
defensible stand-by-our-guy reaction.
But the Crown was wise to accept the plea bargain with Bertuzzi and
spare British Columbia taxpayers the expense of what would be both a
circus and a trial. It was obvious that Bertuzzi wouldn't serve a day of
jail time, regardless of what came out of the trial. The Marty McSorley
trial in Vancouver illustrated that tying up a courtroom and governmental
resources for weeks is an inefficient means of airing dirty laundry, which
is what the Bertuzzi case would have done -- and nothing more
Beyond that, Moore probably shouldn't sue, even if he isn't able to
play again. There are precedents, including Dennis Polonich suing Wilf
Paiement and receiving $850,000 in a 1982 U.S. federal court judgment. (The
irony: Paiement was playing for the Colorado Rockies when he nailed
Polonich, the feisty Red Wings winger, in the face with his stick in 1978.)
But there is an implied consent involved with participating in professional
sports, and a component is that violent actions, however abominable,
that take place within the sport itself should be handled within the
But if it stays out of the courts?
Or even if Moore proceeds?
The NHL must, in effect, respond by aggressively putting itself on
trial and further examining the frontier justice mentality that, when distorted to heinous extremes, is the root of many of its credibility problems.
There was one major argument for Bertuzzi going to trial and for
British Columbia authorities seeking to put him in jail. It might have sent
a significant message through the hockey system, from major junior all the
way down to minor hockey, where lessons of the "the code" are gradually
taught or absorbed. But that's a vague, almost philosophical justification,
and isn't sufficient to warrant the taxpayer expense.
Face it: Image problems have helped prevent the NHL from breaking
out of its niche status south of the U.S.-Canadian border and contributed to
the problems that have left us facing a Christmas season without the NHL.
In the U.S., the league's image often is comical caricature, irresponsibly and
inaccurately expressed by those who parrot tired cliches after putting on
the makeup, but it does the game a disservice to ascribe ALL criticism to
that sort of intellectual laziness. The Bertuzzi-Moore episode has given
ammunition to those so prone to taking the easy way out and knocking the NHL as a
cross between WWE and a tractor pull.
Also, though, there's one other major misconception about the NHL.
Contrary to widespread belief, the outspoken defenders of the "code"
mentality -- including those who respond to any criticisms of the sport with
the brain-dead and reflexive, "YOU DON'T UNDERSTAND THE GAME!" -- are not
expressing a unanimously-held viewpoint among those who appreciate the game.
The intellectual debate about the sport, whether after notorious
incidents or otherwise, is far more spirited and eloquent in Canada than in
the U.S. The attack on Moore made the cover of MacLean's, the Canadian news
weekly, and the article was as searing -- if generally more thoughtful -- than
anything that appeared in the U.S.
So there's an insightful constituency out there, in both the U.S.
and Canada, that loves hockey -- but wants to make it better.
The McSorley and Bertuzzi incidents both were outside the boundaries
of the code, but both were outgrowths of it. McSorley's swing at Donald
Brashear wasn't premeditated. Bertuzzi's attack on Moore followed weeks of
yapping that could be interpreted as premeditation. But both came because at
a specific moment, the "victims" wouldn't fight. (Moore had fought with the
Canucks' Matt Cooke earlier in the game, but Bertuzzi's goading didn't
That's where Moore can help, but not necessarily in a courtroom.
Contribute to the public dialogue. Be a spokesman for the re-examination of
the code, even as he attempts to physically recover from post-concussion
stress syndrome and other lingering problems and get back to the NHL.
If the NHL blackballs him for that, or takes it out on his brother, Rangers
prospect Dominic Moore, shame on everyone. Then maybe he could reassess his
The legal complexities, of course, are a labyrinth. Obviously, Moore
was told from the start to withhold significant public comment for legal
reasons involving both the criminal investigation and a possible lawsuit,
but his cause would have been far better suited if he had been forthcoming
about his feelings and the events of that night.
His victim's impact statement was read into the record Wednesday in Vancouver, and he held a news conference in Toronto Thursday. He is an eloquent Harvard graduate with formidable legal support, and his statement was as much of a chilling
indictment of the game as anything the Crown could have filed. He would have
been so eloquent and forthright, it wouldn't have come off as whining.
It would have helped the game if he had been saying these things all
along. Whether at a news conference podium in Denver months ago or whenever,
his recounting of what happened would have been a lot more effective than in
a victim's impact statement and set the stage for the decisions the Crown
Yes, keeping the case from going to trial still probably would have
been the best decision. But Moore's participation in the ongoing public
dialogue and the examination of hockey and its mores would have been a great
So how does the NHL put itself on trial, presumably after a new
collective bargaining agreement is signed?
The NHL should show it can handle it.
When the league comes back, Bertuzzi's suspension should be made
definitive: One calendar year. The NHL must make it clear that in the
future, organizations and coaches will be be held far more culpable than
were the Canucks, Burke and Crawford. The team was fined, but it
figuratively was a lighter slap on the wrist than Bertuzzi's sentence.
The NHL Players Association -- at least for now led by Trevor Linden, the
Canucks' center -- must step in and lobby its members that universal respect
must be the goal.
Attack the mentality that led to this.
And if that isn't done, the next time the NHL says it can handle it,
the response will have to be: "No. You can't." And the arguments about
needing to take it to court, because the NHL can't police itself, will be a
lot harder to dismiss.
Terry Frei is a regular contributor to ESPN.com. He is the author of the recently published "Third Down and a War to Go," and "Horns, Hogs, and Nixon Coming."
If the league wants to police cases like Todd Bertuzzi's, it needs to prove it can.