With the NHL's regular season now well underway (and it looking like this may be the last year we can use this analogy), today we're going to examine regulatory defences, by focusing on an offense that's become all too common in recent years:


What? That's not a real offense, you say? Well clearly that means you're a Calgary fan, so your credibility is shot right out of the gate ;-) As Oilers fans, we know it's an offense. An offense that we've witnessed firsthand, on more than one occasion now. And we know it's inexcusable. Simply stated, if the matter ever went to trial, the Oilers would be found guilty as charged.

Or would they? As open and shut as the case initially looks, since the offence is regulatory in nature, the Oilers might just have a defence to the charge - despite the fact that the act of the offence (known as the actus reus) - in this case, having missed the playoffs - is easily proven true. Whether or not the same could be said for their defence, however, would all depend on the facts of the case, and what transpired throughout the course of, and leading up to, last season. 

At first, we might expect the team to come out of the gate with one of what I like to call the "nice try, but no” defences. While completely legitimate defences to regulatory charges per se, as fans, we'd look at them and just shake our heads. 

For instance - there's the "we didn't see this coming" defence, or it just "wasn't forseeable". As a society, we don't typically expect people to guard against or try to prevent events from occurring if they are completely unexpected. That simply wouldn't be fair. After all, are you really such a bad person, company, or team, if you failed to prevent or avoid something that no one in a million years would've ever seen coming? Probably not. So we need to ask ourselves - was this one of those situations? No. As fans, we know it's always possible that a team might miss the playoffs, so we are able to shut down this "didn't see it coming" defence pretty quickly. Nevertheless, we can probably still expect that at least a few sympathetic ears would be swayed in the event Oilers' management tried to restrict the notion of what was forseeable and what wasn't, by limiting the analysis to what was forseeable "with this particular roster" or by tying it to "injuries that just couldn't be planned for". We know better, of course.

Next up, we've got the potential for the "it was a mistake" line of defences - known as "mistake of law" and "mistake of fact". First - let's be clear - you've no doubt heard the saying that ignorance of the law is no excuse? Well that's absolutely true - a defence like that is a complete non-starter. So, if the Oilers were to argue that they knew nothing about this law, and certainly not that it applied to them or to the 2015-2016 season,...that really wouldn't matter a whole heck of a lot. Great. Thanks for coming out. You're still guilty. But what if the mistake wasn't about the law, and was about some particular set of facts? We all make mistakes (yes, even lawyers :-)). An honest mistake means no harm, no foul, right? Well - that's true - but only in certain circumstances - and those circumstances are pretty rare. For instance - let's suppose that the Oilers were battling for a play-off spot, right up to the final few games of the season. Let's further suppose that Oilers' management believed, albeit inaccurately, that they'd clinched a spot just prior to their last game. As a result, management made the decision to rest some of their better players, and go into that final game without them in the lineup. Ultimately, the Oilers end up losing that game, and discover shortly thereafter that they had not, in fact, clinched that final playoff spot. What are your thoughts? Would that be an honest mistake of fact? Few would agree that it is - and would question why, at the very least, that the Oilers didn't make reasonable inquiries with someone about their place in the standings, prior to the game. What if the Oilers had indeed taken such steps to verify their spot in the standings, though, and received written confirmation from league officials? Would that change your opinion on whether or not there was an excusable mistake? I expect that at the very least we'd see an argument that there was an "officially induced error"...and that as such, the Oilers ought not be held responsible. 

Obviously enough, we aren't aware of any such circumstances from last season, and the Oilers were out of the playoffs long before the final game of the season. What the foregoing should demonstrate, however, is just how important the facts of each and every case are, especially when assessing a potential defence. That's especially true when an organization chooses to table this next one - the main one, if I can call it that - known as the "due diligence defence". While quips of the other defences might emerge via interviews, press conferences, etc., I would expect that if the Oilers really were put on trial, such defences would just be filling space and air-time while behind the scenes, the organization was preparing to present this much more common, and much meatier defence. 

In its simplest form, the due diligence defence is one of "yes...this happened, but we shouldn't be held responsible for it because we did everything we could reasonably do to prevent it from happening...and we can prove that we in fact did so". It's really an all-or-nothing defence, in a sense, but what does it actually mean to say that you've done everything you can reasonably do? Well, in this case, it would mean that the Oilers had a system in place both before and during the 2015-2016 season, to prevent them from missing the playoffs. What should that system include, and what should that system look like? As is always the case with this type of defence, there's no easy answer, or pre-ordained checklist of action items. Sure, there are a few obvious ones - you want to make sure you've got hockey players on the ice, and not football players...but everyone (with the exception of the Flames ;-)), gets the obvious ones. When we talk about due diligence in this context, we're really talking about going beyond just the obvious - thinking outside of the box - and taking into account ALL of the things that impact a game and a season - right from the selection of players, to training camp, to mid-game adjustments, to pre-game meals. Was there a plan in place that took into account all of those factors? Did it identify, assess, and respond to shortcomings or problems? Was it malleable enough to change when and if necessary? Did the players buy into it? Were they disciplined if they didn't? What about this? What about that? Those are the kinds of questions that we find ourselves asking as fans, and those are the same questions that Oilers' management would need to have considered and addressed at a much earlier time before the regular season began, and on an ongoing basis throughout it. A successful due diligence defence for the Oilers wouldn't mean that they've got a system whereby they'll never get scored on, or never lose another game, but it would mean that when put under the microscope, there was nothing more (within reason) that they could've done to guarantee a playoff berth - sometimes, as they say, shit just happens.

So there you have it. Looking at it from 30,000 feet and leaving out a few details here and there (this excerpt is distilled down from its 1 hour presentation format), those very defences that the Oilers might bring to the table are the very same defences that your organization might bring, if ever facing regulatory charges. If you're interested in learning more about any one of them, or why the Oilers will be much, much better this year, thereby negating the charge (and need for such defences) completely, give us a shout! We're always happy to talk shop. Or hockey :-)