No, no, no, there is no "now we pick an arbitrator"
by Quisp on Jul 26, 2010 11:15 AM PDT
in CBA
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Print[but see UPDATE at the end of the post, as the league apparently, um, didn't do what the CBA tells them to do. Hey, isn't that a circum -- never mind.]
In response to the (many) people saying, and now it's time to select an arbitrator and the league and the NHLPA have to agree and that could take months...
No.
Because of two facts. One, the CBA requires that there already be an arbitrator. The arbitrator is on retainer or on hold or in the on-bat circle or whatever you call it, year-round. He's renewed every February 1. The league and the NHLPA can replace him, but the protocol is this:
48.5 (a) There shall be one System Arbitrator, appointed jointly by the parties, who shall serve for the duration of this Agreement; provided, however, that on February 1, 2007 and on each successive February 1, either party may discharge the System Arbitrator by serving written notice upon him and upon the other party by that date. The parties shall thereupon agree upon a successor System Arbitrator within the following sixty (60) days.
Sixty days from 2/1 was this past 4/1 or 4/2, depending on where you start counting. Then this:
Should the parties fail timely to agree upon said successor, each shall immediately designate the Dean of either a school of law or business and said two Deans shall, within sixty (60) days, jointly appoint a successor who satisfies the requirements of subparagraph (b) below. (b) The System Arbitrator to be appointed hereunder shall be an attorney with significant experience with matters requiring financial sophistication and business/accounting expertise and as an arbitrator or judge or other decider of contested proceedings.
Which brings me to fact #2: If the league and NHLPA have not agreed by 4/1, they don't get to pick the arbitrator. They only get to pick responsible grown-ups who can do it for them without their meddling. So, note to everyone saying that somehow there is no arbitrator and the league and the NHLPA now have to/get to pick one: not only is there already supposed to be one in place, but if there isn't, it's not the league's or the NHLPA's decision anymore.
So, assuming that they dismissed last year's arbitrator (otherwise, why are we talking about this?) the league and the NHLPA were supposed to pick the two deans "immediately" at 4/1. What do you suppose the chances are they didn't do this? I'll leave that for discussion.
In any case, according to the CBA (quote above), the two deans appoint a new arbitrator within sixty days. Sixty days from 4/2 (I'll take the later date), is June 1.
Which is obviously why they laid the calendar out this way, so that there would be an arbitrator in the event that one was needed on 7/1.
So, really, is it possible the league and the NHLPA were scurrying around this weekend trying to pick deans who then would pick an arbitrator? Well, if they really were so lame as to blow off the 48.5 of the CBA, then, yes, that's what they would have to do.
Because, as I have been saying for about a week, there is no provision for picking an arbitrator now. Once the NHLPA gives notice of intent to dispute, they have 24 hours to notify the arbitrator (or else -- truly -- they have not "timely disputed" and the contract is automatically void -- wouldn't that be hilarious), and after that there shall (i.e. must) be a decision within 48 hours. Thursday, at the latest.
UPDATE
This is the quote from Daly:
Union counters NHL rejection of Ilya Kovalchuk deal - ESPN New York
"Although there is no defined timetable at this point," --
Except for 11.6(a)(i)(y): "if the NHLPA does timely dispute and refer to the Arbitrator such rejection in the manner set forth in Section 11.5(g) above, then such dispute over that rejection shall be both heard and decided by the Arbitrator within fortyeight (48) hours."
There is no, "unless we forgot to appoint an arbitrator several months ago."
-- "we intend to work with the Players' Association to ensure an expeditious resolution of this dispute," NHL deputy commissioner Bill Daly said in a statement. "The league looks forward to the opportunity to establish its position before the arbitrator." Daly said that the league would have not further comment until the issue was resolved.
Although there is language in the CBA suggesting the grievance should be heard by an independent arbitrator within 48 hours of the grievance being filed,
:)
that's unlikely to happen.
:(
First, the union and the league will have to agree on an arbitrator that will hear the case and that may take several days.
Good work, fellas.
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While that is true in theory...
It is not at all uncommon for there to be no arbitrator in place or worse. For instance, I am aware of a situation where a union has had arbitrators on its panel that are deceased and other arbitrators that are retired.
While it is great in theory to have an arbitrator selected in the manner the CBA provides, that doesn’t mean it happens in practice. From all I am reading around the blogosphere and Twitterverse, there has not been a System Arbitrator in place for a while nor, it seems, has there really been a pressing need for one until this contract. In those types of situations, even where the CBA dictates something, it is not at all uncommon for the two sides to not proceed as the CBA requires until there is a need to do so.
well…they have their “need to do so” now…
in 1984, i was hospitalized for approaching perfection....
also, i would like you to guest blog in the fanshots or whatever they're called, if you would be so inclined
I would say you could do it in the main blog, but I think I have to clear everything with the Overlords first. Which I would be happy to do. If you’re into it.
Wait till this year.
that's hilarious
however, what do you think about the fact that the burden, according to 11.something is on the NHLPA to notify the arbiter within 24 hours of notifying the league… I’m sure nobody would bother holding anyone to that if it were true, but I must be misreading a comma somewhere, no?
Wait till this year.
The way I read the 11.5 section is that if the notification is via the hotline (i.e. it is a weekend notification), the NHLPA can contact the arbitrator to initiate the 48-hour clock, rather than waiting until the next business day, presumably to make things move faster. There’s a “such notice” clause, then the “hotline notice” clause, then “If the NHLPA sends such a notice, then the NHLPA may also refer such dispute to the Arbitrator within twenty-four (24) hours of sending such notice.” My reading would be that the 24 hours clause would apply only to the hotline, because of the ordering of the sentences. To be otherwise, it should be the “hotline notice” clause, then both “such notice” clauses, or the “such notice” clauses and then the “hotline notice” clause. The way it’s currently written, it’s how to do it, a clarification, a special case (the timing), and an option if the special case is executed.
I think the grievance is automatically a referral to the arbitrator; the wording in 11.6 on “timely dispute and refer to the Arbitrator” is probably intended to be a single action, the filing if the disputation, rather than two separate actions.
It’s ambiguous, like so many legal documents. Everyone wants their wiggle room.
Honor is no substitute for victory.
That makes total sense to me. If they decide to grieve over the weekend it basically would allow them to notify an arbitrator immediately instead of waiting until Monday to start the 48 hour clock. I also agree it seems that the dispute and refer to arbitrator is one action rather than dispute then take your time referring it to an arbitrator.
Actually, I read it as 2 separate processes
They have to provide written notice by fax and email, but the hotline is there so they can also leave a voicemail if the dispute is filed over the weekend. Maybe the concept is that the email or fax is not necessarily checked on the weekend, but the voicemail can be. It strikes me as a bit of a convoluted process, but it does leave less doubt as to the timing of the dispute.
As to the filing, I read it as a 2 step process, especially since the provisions in 11.6 refers to the PA disputing and referring to the arbitrator. 1 – notify the NHL within 5 days of the dispute. 2 – if they want an arbitrator to resolve it, they have to file for arbitration within 24 hours after notifying the NHL. It is possible, I suppose, that there are situations where the NHLPA may just want to put its objection on record, without actually arbitrating an issue. In all likelihood, even tho the process is a 2-step one, they would notify the arbitrator concurrently.
Quisp, you raise an interesting point of what they do when there is no arbitrator in place and I am not sure how the NHL/NHLPA handles it. There may be an administrative office within the NHL or NHLPA that handles some aspects of the procedure on behalf of the System Arbitrator, in which case it would probably be sufficient to provide notice to that office.
That is correct in this case
Quisp what you are referring to is the matter of how to choose a successor to a previously chosen System Arbitrator who has been dismissed. However, in this case, there has never been a System Arbitrator so that rule does not aply.
This could take much longer and certainly wont be done by Thursday unfortanutely.
thanks, proctor...:)
yes…you have been saying all this for a week now…
thanks for all yr perspective and explanations…
in 1984, i was hospitalized for approaching perfection....
Wouldn’t failing to follow this whole process for deciding on a system arbitrator within the deadlines laid out be considered a circumvention of the CBA by the NHLPA and the League and thus require penalties…..?
Seriously though, they need to quickly get this matter resolved by getting an arbitrator and having a ruling within about a week.
The best part would be the league declaring the NHLPA hadn’t followed up in a timely fashion so they can’t go to an arbitrator, the NHLPA disagreeing so… they go to an arbitrator?
--VOIDED CONTRACT--
And, pray tell, who most would care to have a Voided Contract?
Wouldn’t that be the New Jersey Devils?
Fines and Suspensions
Those are just likely negotiation chips, for the NHL…
I say, Void It!/Arbitrator will then come!
Updated Update
Actually, now there does seem to be Endless Clock for Picking Arbitrator…
Now, who do you think they pick?
The Two Deans?
If they're smart, they'll follow Section 45
Deviating from that would allow endless kvetching from whichever party loses. If they do so, the Deans must be selected “immediately,” and they have up to 60 days to pick a Systems Arbitrator. I would expect some encouragement to make the decision quicker than that, but the worst case scenario would be somewhere around the end of September for this whole fiasco.
This is why you don’t let important positions (like the person that rules on contract disputes!) go unfilled.
Honor is no substitute for victory.
That worst case is really stunning
I’m not doubting you, but… wow. If this goes all the way to the end of training camp (i.e., if Kovalchuk is held in suspended animation that long) and the contract is definitively struck down, that pretty much kills Kovi’s chances of signing with a contender and getting big money, unless it’s with New Jersey again. In other words, his position will be very weak because he won’t be able to use the Kings as leverage anymore, them having moved on well before then. It’s probably a short-term contract or nothing for him at that point.
If I’m Lombardi and I’m pondering this possibility, I just give up on Kovalchuk all together now. That door is closed, locked, bolted and barred. Can’t afford any more to wait on him and set aside the cap space.
If the NHLPA wins the case and it is the end of September...
…it will be harder for NJ to clear the space to fit Kovalchuk’s $6 million cap hit starts. Does Lou make the room in August just in case they win? Do they have a backup deal already signed just in case they lose the case and can clear the space? If they lose, does the NHL fine NJ making it even harder to get the cap space for Kovlachuk?
Lots of stories to be played out still and when has the NHLPA and NHL ever agreed on something in a timely manner?
That's why I expect both the NHL and the PA will push for a quicker decision
Section 48.5 (I made a typo before) is predicated on the decision being made as soon as the two don’t select an arbitrator – April 2nd was the deadline for picking the arbitrator, and if they couldn’t come to an agreement, the Deans should have selected an arbitrator by June 1st. That apparently didn’t happen.
Honor is no substitute for victory.
if the league wants to kill the deal
they could simply drag their feet forever and it would be de facto killed by the fact that kovalchuk would have no place to play.
i do not think new jersey can be held accountable for a cap hit that has not been approved by the league, so they wouldn’t be over the cap if they were to prepare for the season by adding whoever they would need to add, or not getting rid of whoever they would need to get rid of if kovalchuk’s contract is approved.
but
if it dragged on into the season, then they would be in a position where they would be in circumvention the very second that the arbiter ruled in favor of the nhlpa. that is an article 50 violation. it’s a weird circumstance, in that it’s total the fault of both the league and the nhlpa, but i don’t think there’s a provision that allows them to be over in the event of whatever you would call this situation with the arbiter.
probably what would happen then is that the league would instruct nj to comply with the cap asap by whatever means necessary.
and they wouldn’t be allowed to play any games without doing so.
which would probably mean waiving someone. which would mean giving up a roster player for nothing, zubrus, whoever.
which lou won’t want to do, so he would probably try to swing a deal then, or pre-emptively.
there’s no way they let this drag on into the season. it’s horrible for everyone. they need to pick someone now.
if it takes — gag — a month or something, i think Kovalchuk has a case for a grievance against the league and the NHLPA, for not having an arbiter ready and as a result costing him millions of dollars in whatever deal he could have otherwise made (if the contract is voided, I mean).
making a deal in september is much harder than in july, or late july, or even august.
no, they have to rap this up now.
and not just because they’re already ignoring provisions of the CBA by not having an arbiter in place.
Wait till this year.
Lombardi/Kings/Kovalchuk
I think he’ll just wait and see. He doesn’t have to add anyone. It’s in his character to be conservative and not make any moves. He’s more likely at this point to go with the kids than to make a trade — not that a trade isn’t going to happen, but we all know that expectations for what moves might get made tend to get re-calibrated downward as time goes on, and Lombardi needs the room anyway for the RFA contracts.
My point is (sorry, digressed), he will be in just as good a position to act if he wants to, in September, or whenever this thing resolves itself.
Still a coin toss how the arbiter rules.
Wait till this year.
Couldn't he wait and if it gets rejected
Just try to sell Kovy on a 1 year deal maybe. Then it won’t mess up cap for Doughty, Johnson, Simmonds, etc and we should have the room to give him a pretty huge contract for just one year
I've got Frolov on the brain today, not so much Kovalchuk
I’m just thinking aloud about the possibility of bringing him back. I have assumed all along that it would be impossible to re-up Frolov and bring in Kovalchuk because of the overall cost.
So if the opportunity to bring Fro back at a reasonable price pops up, don’t you go for it without waiting for Kovalchuk’s situation to be resolved?
ESPN_Burnside New York Rangers and unrestricted free agent Alexander Frolov are nearing a deal. Have to work out term.
http://twitter.com/ESPN_Burnside
DarrenDreger Discussions between the Rangers and Frolov (Newport), but the deal isn’t done yet.
What's This?
The NHL doing whatever it feels like and ignoring the written and somewhat clearly defined process? Not in my Gary Bettman NHL!
Not surprised at all by this, really.
Wheel of Location, Turn Turn Turn. Tell us the location that we will play.
Contributor to Lighthouse Hockey not sure if I'm the Sniper or the Enforcer.
The NHLPA is just as guilty on the whole arbitrator thing...
…both sides should have seen this coming from the past 2 off season contracts that were signed and investigated.
CBA provision for arbitrator selection
The provision you cite deals with the selection of a successor arbitrator once the original arbitrator has been dismissed. Since ther never was an arbitrator, the “successor” provision is not applicable.
The 24 hour clock is ticking.
Ok.. Quisp, please simplify this for me..
How/When does Kovalchuk become a UFA again and is that even possible? If so, what are the odds that he does indeed become a UFA? Or does he stay with the Devils no matter how this thing turns out.
0% = no chance
50% = half/half
100% = will definitely become a UFA
Hahahaha, I think some people like me need all of this to be said in english.
hmmm, okay...
1) arbiter upholds league’s rejection. Kovalchuk is a UFA. 59.9999%
2) arbiter rules in favor of the NHLPA. Kovalchuk is a New Jersey Devil for life. 40%
3) new third choice if you believe Ken Campbell (which requires essentially throwing the CBA into the trash): arbiter rules in favor of league and arbiter restructures the contract so that the salary and cap hit are the same, $6MM every year for 17 years. Kovalchuk is a Devil for life at a pathetic salary he will not accept. Therefore, Kovalchuk “retires” and goes to the KHL. 0.0001%
Wait till this year.
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