Two things everyone seems to be getting wrong [now with big update]
by Quisp on Jul 22, 2010 11:34 AM PDT
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First thing:
This whole idea that the contract can be tweaked to conform to the CBA, avoiding the arbritration process. No. It can't.
11.6 a (iv) If the Arbitrator sustains the League's rejection of any such SPC pursuant to subsection (ii) above, then the Arbitrator shall reform the SPC such that it conforms to the requirements of this Agreement, in a manner such that the term of the SPC shall not be modified and the aggregate compensation to be paid to the Player pursuant to the SPC shall, to the extent possible, be preserved.
But. This is not "pursuant to subsection (ii)." It's pursuant to subsection (i), which covers salary cap circumventions.
11.6 a (iii) If the Arbitrator sustains the League's rejection of any such SPC or Offer Sheet, as the case may be, pursuant to subsection (i) above, then the Arbitrator shall order that the rejected SPC or Offer Sheet, as the case may be, will, immediately upon the League's receipt of the Arbitrator's decision, be deemed null and void.
The subsection (ii) remedy is only for minor issues, ones that don't relate to Article 50 and circumventing the upper limit provision of the CBA.
Which brings me to my second point. People keep saying, "it's a slap on the wrist." Well, no:
26.13 (c) In the event that the System Arbitrator finds that a Circumvention has been committed by a Club or a Club Actor, the Commissioner may impose any or all of the following penalties and/or remedies set forth below: (i) Impose a fine of up to $5 million in the case of a Circumvention by a Club or Club Actor, but in no circumstances shall such fine be less than $1 million against any Club or Club Actor if such party is found to have violated Article 50 of this Agreement. If such a fine is assessed against a Club (except in the case of a financial reporting violation), that Club's Payroll Room shall also be reduced by such amount for the following League Year.
[UPDATE THAT'S KINDA IMPORTANT: many people have pointed out that Article 26 describes a separate process than Article 11, and that, essentially, the process we're in at present -- which will lead to an arbiter's ruling on the contract, or else the voiding of the contract before we get to arbitration -- simply rules whether the contract stands or not, while Article 26 gives us the process for (apparently "further") investigating the possible circumvention and ultimately leading to a (second) arbiter who is the one mentioned above (26.13c) who finds yes/no re the circumvention. That the CBA is confusing and muddled should surprise no one. I have two three problems with this interpretation (not to say it's wrong, I just can't reconcile it with this): (1) the league has already decided it's a circumvention, so they don't have to further investigate if they think what they already said they think; (2) the "sit down and discuss" to see if something can be worked out between the parties aspect of Article 26 doesn't make sense to me in this context; what is there to work out? The contract is void and gone (in this hypothetical); the league has already decided it's a circumvention; the commissioner can't negotiate lesser penalties until after the second arbiter has ruled; and (3) the second arbiter is ruling on whether or not there has been a circumvention, when the first arbiter already ruled that the contract is void due to a circumvention, and that first arbiter's decision is binding. If the second arbiter rules that there is no circumvention, it's not like the voided rejected contract can magically be un-void, de-rejected, re-registered and approved. So again, how is that not a conflict with 11.6?
You may continue...]
If you want to pore over Article 50, as I did in a previous post, you can find several possible circumventions, but you needn't look any further than:
50.5 Team Payroll Range System; Lower Limit and Upper Limit; Payroll Room; Lower Limit and Upper Limit Accounting. (a) Overview of Operation of Team Payroll Range. The Team Payroll Range created by this Agreement consists of a Lower Limit and an Upper Limit during each League Year for permissible spending by each Club based on its Averaged Club Salary. The Team Payroll Range provisions do not permit Clubs to have Averaged Club Salary that is below the Lower Limit. Nor does the Team Payroll Range permit Clubs to have Averaged Club Salary that is above the Upper Limit, except for two (2) limited exceptions provided in this Agreement, with respect to bona fide, long-term Player injuries or illnesses, as set forth in Section 50.10(d), and with respect to the "Performance Bonus Cushion," as set forth in Section 50.5(h).
But that's what Article 50 is. It's the details of the upper limit and the lower limit; that is to say, the salary cap.
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What about 26.12?
Joint Discussions on Possible Circumventions.
“…the parties shall (must) meet and confer to try to resolve the matter.”
“Neither the NHL nor NHLPA may commence any action before the System Arbitrator pursuant to Section 26.13 below prior to the parties having met and conferred pursuant to this Section 26.12.”
26.12 provides for a general procedure used in investigating and resolving circumventions in general
but 11.6 covers the specific circumstance of a contract that is rejected by the league for being a circumvention of Article 50. In the case of a contract which is determined to be in violation, this determination is at the league’s discretion, subject to the arbiter’s confirmation.
Wait till this year.
26.12 is a pre-requisite to the heavy penalties, tho
There are two separate arbitation provisions that may come into play – the one in Article 11 and the one in Article 26. The Article 26 one may well not come into play here which means the Article 26 penalties wouldn’t come into play.
While the arbitrator cannot reform the contract in this situation, the odds are that Kovi and the Devils will go back and try to modify the terms to make the deal acceptable. If they revise the deal between now and then, the arbitration hearing becomes moot. All they likely have to do is move some of the money from the earlier years to the later years, maybe shave off 2 years, and they would probably be okay.
What will be more interesting, IMO, is what will happen to Lamoriello and Grossman when they have to file their annual certifications under Article 26, certifying that they have not violated Article 26 and committing to uphold it. Hmmmm….
"does this guy know how to party or what?!"
- wayne campbell
@quisp, you really cannot be commended enough for the time you’ve spent to not only make sense of the CBA yourself, but to break it down for the rest of us. thank you, thank you, thank you very much.
since you’ve been so spot on lately, quistradamus, i’d love to read your prognostication as to how this next week plays out? it’d be shocking if this DOESN’T go to an arbitrator don’t you think? and then I know it’s entirely dependent on the arbitrator and his judgment… even so, i’m sure you’ve already played a few scenarios out… how do you see it unfolding?
It seems to me, and like scenarios we have known before, the CBA is intentionally vague, as to allow the NHL and the NHLPA to have discussions to best work out any issue without there being an official decision for the public to devour.
"Don't worry about my Cap." - Lou Lamoriello
but the cba is not vague in this situation
it says, if the league rejects a contract, the following rules and procedures SHALL be followed…and then it proceeds to say, the nhlpa grieves or not and if they grieve then the arbiter rules. at no point do the procedures include renegotiations.
the article 26 bit with the sides meeting appears to conflict with (but not trump) article 11. But I have to look more closely now. UGH.
there’s really no getting around the specific guidelines of article 11, though.
Wait till this year.
Articles 11 and 26 are not dependent on each other
Article 11 deals with individual player contracts while Article 26 addresses a broader question of circumvention. Theoretically, a contract could be voided under Article 11 with no finding of circumvention under Article 26. On the flip side, a contract could possibly survive arbitration under Article 11 and still result in a finding of circumvention under Article 26.
Ah, collective bargaining agreements… you have given me many grey hairs…
I agree with you to the extent that there is ambiguity about how 11 and 26 relate in the circumstance of rejected contracts
However, the league has alleged a circumvention of article 50. This is the precise type of grievous circumvention that mandates the $1MM minimum penalty in Article 26, provided that we have arrived at the place where that arbiter (which I now see could refer to a second arbiter ruling on, essentially, the degree and/or details of the circumvention in question, rather than a first arbiter ruling simply “contract good” or “contract bad”) rules on the circumvention as it relates to the penalties in 26.
I get the two separate procedures part of this.
But how does the second procedure (per 26) reconcile the fact that the first procedure (per 11) has ruled that there is a circumvention and therefore the contract is void (if that turns out to be the case)?
Because the league has already decided there has been a circumvention, which is the grounds for rejection. Bettman could (at whatever point he’s allowed to start punishing people) certainly decide not to assess any penalties he doesn’t have to, if he’s feeling especially nice. And the two sides could (in this second — article 26 — investigation/arbitration) sit down and try to hash “it” out. But since the league has already “ruled” that it’s a circumvention, and in this hypothetical the contract is already void, what exactly would they be negotiating over except the penalties that Bettman might assess if this gets through (the second) arbitration?
Bettman would not be allowed to assess penalties without the arbitration, so they couldn’t really “plea-bargain,” right?
Which means, the significance of the Article 26 process of investigation is that Bettman could drop the ball if he so chose, thus letting the team/agent off the hook, having been satisfied that he got what he wanted (presumably), which is the contract voided.
Am I making sense?
Wait till this year.
oh well
It won’t happen, but if he comes to la after all this, I will by a Getzlaf jersey and be a duck fan……..and yes I was born and raised a kings fan
Why?
The Devils were going to pay him 22 million more dollars on a team that is still competetive. He’s the least guilty party of the three who should be faulted.
“the Commissioner may impose any or all of the following penalties and/or remedies set forth below: ”
Bettman isn’t obligated to fine Devils if they lose to the arbitrator. IF he fines them, it’s a minimum of 1mil, but he’s not obligated – the word ‘may’ is there. You seem to be saying the Devils are definitely going to lose cap space if they lose to the arbitrator and that’s just not the case.
Sorry, but I think you're wrong...
Per Quisp’s previous post…
That procedure […] is, simply, the NHLPA decides whether or not to protest.
- If they DON’T protest, the SPC is voided and the case goes back to Bettman to issue what he deems to be the appropriate penalties, and he doesn’t have the option of having there be no penalty. The minimum is a $1MM fine and cap hit.
- If they DO protest, it goes to an arbitrator and there is a ruling within 48 hours. If the ruling upholds the league’s rejection, then the case goes back to Bettman to issue the appropriate penalties, as before.
So then, protest…
The CBA is vague for a reason, to allow lawyers to sit in a room together and find the best solution for all parties involved. Its political.
"Don't worry about my Cap." - Lou Lamoriello
Actually, he's right
The penalties are permissive and they are separate from whether the contract is voided or not.
i understand what you're saying, but see above
don’t we just arrive at the same place a little later? the league still says “circumvention.” the (second) arbiter still must decide…
however, wait, the first arbiter’s ruling is binding, right? and if she/he says it’s a circumvention, how can the second arbiter undo that?
This is why I don’t have an Esq suffix.
Wait till this year.
as per previous discussion, i agree that your interpretation makes grammatical sense
but it doesn’t make any kind of practical sense.
the cba goes out of its way to say that if article 50 is circumvented the fine is no less than $1MM.
in order for your interpretation to be the intention of the clause, the cba would have to for some irrational reason have a problem with a fine of $500,000 but no problem at all with $0 or $1MM or $5MM. That makes no sense.
but that doesn’t mean they won’t interpret it that way. :)
Wait till this year.
The order of the wording
makes it explicitily clear. The commissioner “may impose any or all”- a fine is thus not required as it is one of the options that follows this statement. If a fine is chosen, then and only then does the “in no circumstances shall such fine be less than $1 million” clause come into effect. I don’t see any room to interpret this otherwise based on the order that is written.
by -J on Jul 21, 2010 9:27 AM PDT up reply actions
I am so impressed that you called this Quisp!
And it is right and good for hockey. This deal was bs…
Rework
Why does it look like the Devils HAVE to go to arbitration. They can simply just rework it before any of that needs to happen. Like previously said, move money around, shave off two years, and you have Hossa’s deal +3 years. The NHL would then have 0 argument.
because the cba says that once a contract is rejected due to a circumvention of the cap, this (and nothing else) happens:
1) nhlpa decides whether to protest or not.
2) if not, then the contract is void.
3) if yes, then it goes to an arbiter.
4) 48 hours later, at the most, the arbiter rules and his ruling is final.
the end.
no reworking.
however, and this is the big asterisk as far as I’m concerned, I just read someone on twitter saying that the league hasn’t actually filed circumvention charges yet, even though they’re saying the word circumvention in the press. If that’s the case, then the process outlined in article 11 may not even have been triggered yet.
we’ll soon see.
Wait till this year.
the league hasn’t actually filed circumvention charges yet, even though they’re saying the word circumvention in the press. If that’s the case, then the process outlined in article 11 may not even have been triggered yet.
we’ll soon see.
Ahhhhh. So…maybe a window after they’ve warned they won’t accept it, giving NJ a chance to fix it?
In Dinglebarn We Trust
could be, but i need to emphasize that the quote in the blue box is preceded by
I just read someone on twitter saying that
as in
I just read someone on twitter saying that the league hasn’t actually filed circumvention charges yet, even though they’re saying the word circumvention in the press.
Wait till this year.
I believe there are 2 different processes...
There is the process of rejecting the contract based on it having the effect of circumventing the CBA (Article 11) and then there is the investigation the NHL (or NHLPA) can undertake under Article 26 which could lead to fines, loss of draft picks, etc. These do not necessarily both have to occur. And, even if the NHL undertakes an investigation and finds a circumvention, it could reach an agreement with the PA as to how to deal with it.
they have already found a circumvention
and have cited it as the reason for rejecting the contract. the additional language quoted by daly (re subsection (i) of 11.6a) tells us that this is an article 50 violation. They have concluded this. They have found this. They have ruled that it is this. There is no need for an investigation. Now eithr the NHLPA agrees with the league or it goes to arbitration.
article 26 describes various aspects of circumvention, including what the commissioner may do once the arbiter rules in the league’s favor. this is in fact where the CBA outlines the different penalties. to imply that an investigation per 26 is necessary for the league even after the commission has rejected a deal for being a circumvention is absurd.
It’s like, “We have concluded that so-and-so has committed murder and we will try him as such. However, first we must conduct an investigation, to see if we think this.”
There is ambiguity in the writing about how the investigation process fits with the rejecting of a contract process. But the CBA is clear and direct on the manner of WHAT OCCURS once a contract has been rejected.
With regard to an article 50 violation, there is no room to “agree behind closed doors what to do.” The commissioner has decided. Either the uunion agrees or the arbiter has the final say. He has two choices.
Yes.
No.
Check one.
Wait till this year.
Wow. I'm really bossy.
My comment above, written by me, doesn’t acknowledge the degree to which the “investigation” process apparently leaves room for the league to opt-out of serious punishment if it so chooses.
I should have been less strident and more clear.
Wait till this year.
Dude all I got
to say is, this is the only blog (granted I am a Kings fan) that actually trys to explain and point out the reasoning behind the CBA and the league filing the greviance. I checked out the In Lou we Trust blog and everybody is sold on the idea that they will just rework the contract. Sure, if in fact the circumvention hasnt been made legit. If it has then they cant. I dont understand how people dont get that. Oh well, keep it up because seriously your insight has been the only way to where I understand the ambiguity of the CBA.
Anyone who lives within their means suffers from a lack of imagination.-Oscar Wilde
I distrust those people who know so well what God wants them to do, because I notice it always coincides with their own desires.
my understanding is a work in progress.
what’s funny to me about the denial you’re describing above, is, they also don’t seem to get that they can ONLY do a new contract if THIS ONE is voided; and if it’s not voided, they don’t need to rework anything.
Moot, anyway, because Lou says they’re not touching the contract. It is what it is.
Wait till this year.
I think they’re using renegotiate instead of the correct “Let the contract be voided, sign a very similiar but less obviously cap-circumventing contract.”
The last CBA violation i remember cost the Leafs a fourth round pick. (they circumvented the ELC rules.) I imagine this will be the starting point of any penalties assessed to the devils.
On the Mike Weber bandwagon.
Tyler Ennis: Freed from Portland!
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