Text of Bloch's Decision & my (mostly) non-gloating comments
by Quisp on Aug 10, 2010 9:24 PM PDT
in CBA
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Here's the full text of the decision. First thought: I'm glad they released it. Second: I'm a little surprised at how "short but sweet" the opinion is. The argument he makes -- or I guess the one he accepts -- is pretty much exactly the one I laid out ("The League's Case"), but it's interesting how simply the whole thing lays out, and how much the NHLPA hung their whole case on the letter/spirit dichotomy. It sums up like this:
NHLPA: The CBA doesn't explicitly say you can't do this.
Arbitrator: True.
NHLPA: So we're done here.
Arbitrator: False.
NHLPA: But that's all we've got.
Arbitrator: Okay, now we're done.
Okay, so let's dive right in: [detailed discussion after the jump...]
I was pleased to see (since we could only guess at it beforehand) that the decision quotes the league's original rejection letter:
The SPC is rejected pursuant to CBA Section 116(a)(i) "because it is or involves a Circumvention of [] the Club’s Upper Limit…"
But then, a curve ball...
In addition, the SPC is rejected pursuant to CBA Section 11.6(a)(ii) because the artificial decrease in the SPC’s Averaged Amount and Club’s Averaged Club Salary, and the consequent creation of artificial Payroll Room, constitute violations of Articles 26 and 50 of the CBA.
Since 11.6(a)(ii) doesn't apply at all because (i) excludes it, I can't think of any reason to invoke 11.6(a)(ii) except to give the arbitrator the option of restructuring the deal himself. I can't tell if the purpose of that would be (1) to let the Devils off the hook a bit by allowing the arbitrator to whack a couple of years off the deal and call it a day, or (2) open the arbitration up to the possibility that the arbitrator could reconfigure the deal into what I would have to call "Kovalchuk's nightmare": $6MM every year for 17 years.
But why would the league want to do that? They wouldn't. It would be forcing him to retire. So, I don't know why the league put this in. Especially since it's either (i) or (ii), not both. That's one of the more lucid parts of the CBA.
Also note that the league invoked Article 26 right off the bat. So, hello, it may well be that we have been in an Article 26/Article 11 hybrid procedure all along.
Issue
Did the National Hockey League properly reject the SPC between Ilya Kovalchuk and the New Jersey Devils? If so, was it properly rejected under 11.6(a)(i) or 11.6(a)(ii)? If properly rejected solely under 11.6(a)(ii), how shall the SPC be reformed?
Wow, they really did leave it open to whether it's a (i) or (ii).
Specifically, the League claims the last six years of the Kovalchuk contract are "illusory". It says one cannot reasonably conclude this is an agreement that will be, or was intended to be, fulfilled.
I told you that word was going to be important. Like I said, the "reasonable explanation" standard.
Association Position
The Association claims the SPC contravenes neither the Club’s Upper Limit nor any of the other CBA provisions limiting the form and content of SPCs. Specifically, there are no negotiated restrictions [in the CBA] that would serve to restrict the term, annual salary stipends, "backdive" (decreased payments during the final years) or the Move/Trade language. As such, says the Association, the Circumvention claim must fail.
The NHLPA directs the Arbitrator’s attention to, among other things, the preamble of Article 26, which notes, specifically, that while the Article is designed "to prohibit and prevent conduct that Circumvents the terms of this Agreement," the parties made it clear that the terms of Article 26 were not designed for "deterring or prohibiting conduct permitted by this Agreement, the latter conduct not being a Circumvention." Accordingly, says the Association, since these provisions are permitted by the CBA, they cannot be considered elements of Circumvention.
That's pathetic. Their argument is "if it's permitted, then it's not a circumvention." If that's all they brought, I would have to seriously consider the possibility that the NHLPA did not put its heart into this.
Bloch's analysis:
The League’s right to review and approve or reject an SPC is clearly set forth in CBA Article 11.10 and is not here at issue. It is, instead, the contractual premises for such action that divides the parties.
The issue had been raised (here on this blog, I mean) whether the ruling was simply on the matter of the league's authority to reject, rather than the circumvention itself. I had said, in the comments to one of this afternoon's posts, that I didn't think the league's authority was in question.
The Association bases its case [!] on language in Article 26.3 that unambiguously provides that conduct permitted by the CBA cannot be considered Circumvention.
Which is stupid, is it not? I mean, to hang it all on that slender thread.
These words, says the Association, suggest a bright line test: Absent any bargained restriction on the length of an SPC or on inclusion of any other of the other particular contractual elements, there can be no resulting evasion of the CBA’s letter or spirit.
That would be fine, were it not for the fact that the CBA says that the intent of the CBA is protected and that violating the intent of the CBA is a circumvention of the CBA.
A careful review of the language at issue and the thorough presentations of the parties compels the conclusion that [...] the signatories to the CBA foresaw the need for, and provided language to support, a considerably more comprehensive examination of a particular SPC than that here proposed by the Association.
He rejects the "letter" of the CBA argument, having just noted that their entire case is based on it.
He then looks to the previous CBA for language regarding circumvention and concludes that the current CBA was/is intentionally more broad and inclusive. This mostly hinges, as I argued, on the "or has the effect of circumventing" clause.
These broadly drawn [Article 26] admonitions are consistent with the conclusion the parties anticipated the type of broader review here urged by the League, as contrasted with the markedly narrower scope proposed by the Association. The broader approach permits one to read all clauses in Article 26 in harmony with one another. One may thereby acknowledge the absence of restrictions as to SPC term length, dollar amount or compensation structure, taken individually, but conclude, as well, that that is not the necessary end to the inquiry. A contrary conclusion would effectively read Article 26 out of the CBA.
Which was the gist of my argument in the above-linked post ("The League's Case"). If you assume the NHLPA's interpretation is correct, the CBA collapses in on itself.
Also, I can't help pointing this out:
Even before institution of the new salary cap mechanism and the revised language of Article 26 in ‘04-‘05, arbitrators sitting in judgment of disputes between these parties (under the terms of the 1995 CBA), alluded to a certain breadth of review based not on specific benchmarks, but rather on a consideration of the totality of circumstances.
In the grievance of Sakic, Blake, Turgeon and Nolan (Arbitrator Parker, 2003), the Arbitrator concluded the League had failed to meet its burden in disputing the propriety, under Article 26, of the allocation of certain signing bonuses in particular player SPC’s. But the Arbitrator also made it clear that such challenges were fact specific, depending on the nature of the particular agreement [...]
I believe it was the NY Post which cited a certain pre-2005 arbitration case as somehow damning evidence that the league was certainly going to lose because (I'm paraphrasing) they were overstepping just like they overstepped in the cited case. So I think it's hilarious that Bloch cites the case to make the opposite point.
But, the language of Article 26(3) speaks loudly to the parties’ intention that one look not only to whether the individual terms of the agreement conform but also to whether the agreement, taken in its entirety, may be said to have been intended, or even if not intended, has the effect of defeating or Circumventing the CBA.
:)
A contract term covering a Player’s NHL services to age 70, for example, is not expressly prohibited by the CBA. But the parties to that SPC may not reasonably be found to be seriously anticipating its fulfillment. The Association does not suggest that such agreement must pass muster under Article 26.
I am delighted -- okay, DELIGHTED -- that the NHLPA concedes that there is in fact a limit to term out there somewhere, that, as I argued, an infinite term is not permitted, and last but not least, that the arbitrator actually adopted the same absurd contract length example I used to illustrate the point.
The dynamics of this SPC, with particular reference to its final six years, are such that there is scarce reason for either Player or Club to continue the relationship. The incentives are strongly to the contrary.
Bloch then discusses the differences between Kovalchuk and the other mega-term deals, and notes -- as I have argued -- that the investigation into those contracts is still open:
First, while the contracts have, in fact, been registered, their structure has not escaped League notice: those SPCs are being investigated currently with at least the possibility of a subsequent withdrawal of the registration. It is also the case that the figures in Kovalchuk's case are demonstrably more dramatic [...]
The way I put it was, Kovalchuk's contract is the other contracts with all the knobs turned up to eleven.
And that's, literally, all there is. Except maybe I will suspend my moratorium on gloating just to say this: I'm pretty sure I'm the only one who (1) said don't be surprised if this contract is rejected for exactly the reasons it ended up being rejected, and then (2) said don't be surprised if the league turns out to have a case, and then (3) laid out that case, and in so doing (4) anticipated the league's -- and the arbitrator's -- opinions, more or less point-for-point.
I still don't know what's up with that 11.6(a)(ii) reference. And I notice the arbitrator never resolved it, either. I guess he just decided, no. It's Article 50 all the way. No "re-tooling" possible.
That's all for now. I'm going to hit publish so I can read what plot twists have occurred while I've been typing...
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"Their argument is 'if it's permitted, then it's not a circumvention.'"
Hmm. That does seem like a slender reed. In fact, it sounds like what we in the gaming hobby call ‘rules lawyering.’
So the PA’s entire case came down to the equivalent of a smart-ass 16 year-old game nerd picking through the rules to “Kingmaker” and arguing pointlessly over how the game ought to be played.
Huh.
In the collective bargaining context...
it’s actually not a horrible argument… Particularly in the fields of sports and entertainment, collective bargaining agreements set minimum standards (and, as is the case with the salary caps, occasionally set maximums) but leave a lot of leeway to the individual employee and employer to bargain their specific terms. Generally speaking, there are certain types of provisions that cannot be waived by either side, but the parties can otherwise be as creative as they want as long as they are playing within the framework.
The CBA does have express language that says “[t]his Article 26 is designed to prohibit and prevent conduct that Circumvents the terms of this Agreement, while not deterring or prohibiting conduct permitted by this Agreement, the latter conduct not being a Circumvention.” Even Bloch points out that, taken individually, none of the terms of Kovy’s contract directly violates the CBA. His maximum salary is lower than the league maximum, there is no express restriction on the contract length, etc. That was a completely valid and accurate argument.
That is where, I believe, there is a distinction between a grievance challenging a contract rejection under 11.6 versus an arbitration following an investigation under 26.10. (And some conversations I have had seem to support that theory.) In this instance, all the NHL had to prove was that its rejection of the contract was justified. Bloch formulated the issue of the case in terms of “[d]id the [NHL] properly reject the [contract]?” It was solely a question of whether the NHL’s actions were justified under the authority it had in the CBA or, phrased in other, more simple terms, wether the NHL acting in good faith when it rejected the contract. In doing so, he had to examine whether this contract had an effect of circumventing the cap, to determine if the NHL’s actions were justified, but he did not have to reach the question of the parties intent. The framed issue was actually quite narrow.
In this instance, all the NHL had to prove was that its rejection of the contract was justified. Bloch formulated the issue of the case in terms of "[d]id the [NHL] properly reject the [contract]?" It was solely a question of whether the NHL’s actions were justified under the authority it had in the CBA or, phrased in other, more simple terms, wether the NHL acting in good faith when it rejected the contract.
I have another question for you in regards to intent: do you think Bloch’s ruling stated that the Devils/Grossman acted in good faith, or did he just decline to bring that kind of statement into the ruling since he didn’t have to? This is the part I’m thinking of:
Nothing in this Opinion should be read as suggesting that either the Club or Mr. Kovalchuk operated in bad faith or on the basis of any assumption other than that the SPC was fully compliant with the CBA. While intent is specifically listed as a potentially relevant factor in a proceeding such as this, the System Arbitrator here concludes the SPC terms themselves demonstrate this agreement ‘has the effect of defeating’ the provisions of the CBA, with particular reference to the Team Payroll Range language.
So does “I’m not saying they acted in bad faith in this Opinion” = “They acted in good faith”? Or is that a way of saying “Their intent wasn’t relevant and nothing I say here could be considered binding on that matter”?
Of course I could just be splitting hairs, but in a nonproductive way… :) I’m still curious.
In Dinglebarn We Trust
I don’t think he’s saying they acted in good faith. Keep in mind, when ruling that circumvention has occurred, the onus is on the System Arbitrator to levy any penalties against the player. In the event circumvention is deemed to have occurred, the onus is on Bettman to penalize the club. I think he’s using the lack of any evidence that Kovalchuk acted in bad faith as justification for not levying a fine or suspension against Kovalchuk/Grossman.
In doing so, he also gives Bettman something to point to if Bettman decides not to penalize the Devils for their role in this deal (and it has been reported that the NHL does not intend to fine or otherwise penalize the Devils).
I am a hockey fan first, and a Caps fan second.
by iwearstripes on Aug 10, 2010 1:20 PM PDT up reply actions
I had a conversation yesterday with another attorney closer to the situation (although not part of it). I posited that the reason the no bad faith language was in there was probably to sort of indicate that penalties are not warranted here. But, I agree with “iwearstripes” there… I don’t think he is saying they acted in “good faith”, per se, just that they did not act in “bad faith”. Call it a grey area, if you will.
I do disagree with the proposition being floated that penalties could have been imposed in this proceeding. And my theory seems to be supported by others I have spoken to.
OK. That makes sense. It’s not an exoneration per se, but it’s also not a condemnation either. So the question before Bloch was “Is the NHL within its rights to reject this contract?” Whereas a hearing on penalties would ask, “By entering into this contract, did they intentionally commit a wrong?”
(Thanks again for your help!)
In Dinglebarn We Trust
I should clarify – I think the penalties could have been sought in this proceeding, if the right request was made to the arbitrator. But, based on the wording of the Opinion, this hearing was narrow in scope.
I think, had they been seeking penalties, the question would have been phrased more like (and this is just loose language):
1) Did the NHL properly reject this contract?
2) If so, was it because a circumvention of the CBA was committed?
3) If so, what, if any, penalties should be levied against the player/agent (per the arbitrator’s authority)?
Something more along those lines.
Tho every time I re-read the relevant provisions of the CBA and Bloch’s opinion, I come up with a slightly different interpretation of it. Ugh.
I think the penalties could have been sought in this proceeding, if the right request was made to the arbitrator.
I see. Like instead of one main course, a combo platter. But they didn’t ask for that.
Grey areas are frustrating, but I guess if they weren’t there, the lockout might have dragged on even longer. At least it’s been an entertaining summer! Um, entertaining/agonizing. Good drama always is.
In Dinglebarn We Trust
No intent required for penalties.
Effect of circumventing the CBA is all that is needed. Toronto lost a 4th round pick in a case against an ELC.
Yeah, that is a good point. Very confusing. It’s just that Bloch goes out of his way to mention the intent issue, so it leads me to believe there’s some reason he did that. But if the league decides not to pursue penalties, I guess we’ll never know.
In Dinglebarn We Trust
Penalties
If the league doesn’t hand down penalties to New Jersey, what’s to stop the next team from testing the “line in the sand”?
Think about it. If all that happens is the contract being rejected, what’s to stop the next team from trying it? They have nothing to lose.
I have to believe there will be some penalty handed down.
Maybe the belief that if someone crosses the line again, the league will go all the way?
I’m with you. Just for deterrent reasons, I’d like there to be something more to this (if I were a Devils fan, not so much!). But I would guess (and it’s just a guess) that they don’t want to pile on because teams like Chicago didn’t get stuck with anything. Of course, they’re saying those contracts are still under investigation, but do they really want to overturn them and create chaos? They’ve got their win. Maybe they don’t want to do anything more.
In Dinglebarn We Trust
Congrats Quisp
Good work going through the Insanity of the CBA.
Is there some sort of Ironic photographer who keeps taking all these pics of Kovy (Mr 11 Playoff Games) in the Devil’s Championship plaza…
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.
Nice job Quispy
I eat crow….. I thought it would all be water under the bridge and that you were beyond obsessed. Come to find out you hit it out of the park, damn near word for word. Glad we don’t have to see the ILWT peeps over here bashing you. You were beyond right, now go over there and rub it in their faces, make up a new screen name or somthing.
by 4thliner on Aug 10, 2010 3:39 AM PDT via mobile reply actions
I’m guessing that was the NHLPA’s lawyer with the blue bookbag in the picture then.
by Phalange on Aug 10, 2010 5:03 AM PDT reply actions 1 recs
Devils Fans Devestated!
What a great analysis. ILWT subscribers crying themselves to sleep tonight!
The essence of the League’s objection is reflected in its claim that the final six years are artificial add-ons, the intended purpose of which is to reduce the annual Salary Cap hit. At risk, it contends, is the ability of the League to ensure competitive balance among Clubs. […] It is true, as the Association notes, the words "competitive balance" nowhere appear in the CBA.
Did anybody elses stomach turn a lil’ when they read that last line?
Thanks for trying to “play fair”, NHLPA.
Thanks for trying to “play fair”, New Jersey Devils.
Quisp, while i concede that you were basically right on every point.
My “Results” prediction is still going strong!
Including: The league could not prove this contract illegal without throwing Hossa’s contract into doubt. The devils would face no penalties.
All i got left for a perfect prediction is Kovalchuk signing for slightly less money and term.
Though you did miss one thing Quisp, no one had noticed that whole NMC-NTC thing, which now that i think about it, really means they had no intention of completing the contract.
Some other things of note:
A bit of scare tactics when Bloch noted that “The devils had no knowledge of circumvention and therefore would not face financial penalties.” This pretty much warns “if any team tries this crap again, FINES FOR EVERYONE” Combine this with the pretty unspecific boundary between good and bad, and i don’t think anyone would even try the Hossa contract again.
On the Mike Weber bandwagon.
Everything wrong with the Sabres is Drew Stafford's fault.
where did bloch say
no knowledge of circumvention and therefore would not face $$ penalties?
Wait till this year.
Yeah, I've searched
but I can’t find him saying anything of the sort. In fact, I don’t think penalties have been mentioned at all. Has the NHL discussed disciplinary action somewhere?
by 88fingerslukee on Aug 10, 2010 7:31 AM PDT up reply actions
At the end of page 19 he suggests it. He also obviously has no authority on the matter. Though he sustains the rejection under article 11 and not article 26…
On the Mike Weber bandwagon.
Everything wrong with the Sabres is Drew Stafford's fault.
Just a little light comedy here, for pure diversion.
I heard a really big raspberry being directed at ILWT. I know it wasn’t you, Quisp, because you don’t do that kind of thing; but I enjoyed it for you.
He likes to keep his fire engine clean
It's a clean machine
Hehe
That actually got a chuckle out of me. All I know, its awfully quiet around here from all the Devils fans. Odd how that works, but way to go Quisp your logical and well defined articles were about as spot on as you can be.
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.
Boo-Yah!
The Pronger stuff had me laughing, even (especially?) as a Flyers fan. There’s a reason some of the posters on BSH have nicknamed him Captain Elbows.
Honor is no substitute for victory.
The best is when he does it in the playoffs and gets suspended and you win those games anyways…
I rec’d that shit.
The name's been in use long before the fine folks at BSH picked up on it...
The Captain Elbows nomenclature was prevalently used during his Anheim days and probably goes back much further than that. For example, this little gem from 2008…
The Spirit of MeatTrain'10!
by DodgerBlueBalls on Aug 10, 2010 9:41 AM PDT up reply actions
that just goes to show those on the East Conf have no idea of what happens in the West Conf … :)
Ever get the feeling we are on a collision course with reality?
"They who would give up an essential liberty for temporary security, deserve neither liberty or security" -- Benjamin Franklin
Please. I live in “contract the NHL” central, in Florida. I have to point out every now and again that Florida actually has a growing interest in hockey, and the Lightning actually have solid attendance, while the Panthers (despite their horrible location in a retirement community of a suburb of Miami) are about equivalent to the Ducks.
Honor is no substitute for victory.
Anaheim, CA = Sunrise, FLA!!
the Ducks (
despitebecause of their horrible location in aretirementMickey Mouse community of a suburb ofMiamiYorba Linda) are about equivalent to the Panthers.
This is the best sentence I have read all day. Please share this with our friends at Anaheim Calling and The BoC! :)
The Spirit of MeatTrain'10!
by DodgerBlueBalls on Aug 10, 2010 10:32 AM PDT up reply actions
Oh, heck no. I’m not going to bring up Mickey Mouse around the (ex-Mighty) Ducks. My mama didn’t raise no stupid children.
To be honest, it’s more a gripe at how bad that location is for the Panthers. Seriously, you’re going to put your team 35 miles from Miami and darn near surrounded by protected parks? You cross 869, and it’s the East Coast Buffer and the Loxahatchee National Wildlife Refuge, while Markham Park is to the southwest. Inglewood was 100 times better as a location, let alone the Staples Center. Sunrise is almost literally the worst possible location they could have picked, because it’s isolated, and the main road leading to the stadium is a toll highway. It’s too far away from 95 and 595 for those to really be useful roads for getting to the stadium, and most of the population of the area is well to the southeast.
Honor is no substitute for victory.
A little more comedy here, for more diversion.
How do these people think all this up?
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 10, 2010 9:47 AM PDT up reply actions 1 recs
Wow that’s great – I wish I would have thought of that.
Drew Remenda would praise a bottle of child poison if it had a picture of Darryl Sutter on it.
Battle of California
Ditto. I think of guys like this when I read complaints about all the garbage on the net and twitter.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 10, 2010 10:16 AM PDT up reply actions
ha ha! Okay I was tired of Kovy news when he couldn’t make a decision, interested in Kovy news when the contract was rejected by the NHL, now I think I’ll go back to tired of Kovy news while he again decides what to do … :)
Ever get the feeling we are on a collision course with reality?
"They who would give up an essential liberty for temporary security, deserve neither liberty or security" -- Benjamin Franklin
I’ll bet that little kid in the picture is the one who thought up this contract in the first place.
Drew Remenda would praise a bottle of child poison if it had a picture of Darryl Sutter on it.
Battle of California
That little kid...
is a prop to make Grossman look taller.
"That's a nice shirt....you get a bowl of soup with that?"
Where does the NHL go from here?
If the NHL does go after the other contracts, I don’t believe they will do it to de-list the contracts. They would just want an Article 26 arbitration to call them circumvention and then take some draft picks away from the teams.
This would stop all of the Hossa style contracts too. The NHL doesn’t have to void the contracts to make their point.
That would be my guess
I see that there is reference in Bloch’s Opinion to the possibility of those contracts being de-registered, but I don’t see how they can really do it for a number of reasons.
First, Section 11.6(b), which deals with subsequent de-registration of already approved contracts provides that it has to be challenged “within sixty (60) days from the date upon which the facts of the
Circumvention became known or reasonably should have been known to the NHL.” In the case of Hossa’s deal, well, we are a year past that deadline. I believe a couple of these contracts were signed this off-season, so they might still be able to go after them. But, unless the NHL plans to argue that it didn’t realize they were Circumventions (which does not strike me as a reasonable argument), then they are beyond the statute of limitations for de-registering most of those contracts. The only way they could go back to, say, the Hossa deal, was if they obtained new information that would indicate there was a Circumvention they were not aware of (like, for example, if he was getting cash under the table and the league just found out).
Also, the instability that would be caused by invalidating existing contracts would not serve anyone’s interest. Plus, as I saw pointed out elsewhere, the league wants to be able to present a unified front going into negotiations on the next collective bargaining. If they start screwing with some of their strongest teams by, in essence, pulling the rug out from under them on conduct they thought was acceptable, it would create considerable discord going forward. It would also, at the same time, fire up the NHLPA and probably unify them in a way that they are not right now. The classic management vs labor tension where labor will rally together because management screwed one (or several) of their guys. With the Kovy deal, you don’t necessarily have that feeling because players didn’t seem to be supporting this contract. With the other ones, their contracts were not as egregious, so you would give the middle-to-upper tier players a rallying cry that if it happened to them it can happen to us. The league does not want to create disharmony within its ranks while unifying its opponent.
For much the same reason, even if the NHL investigates and finds that there was circumvention by the other contracts, I do not think we will see severe penalties. I would think that the NHL might, at most, levy some minimum fines and take away some mid-round draft picks. Just enough to send a message to the smaller market teams that the league has their back to try to maintain competitive balance while also sending a message to the teams who made these deals that they should have known better and this conduct won’t be tolerated going forward.
I am assuming...
…that if the league has designated those contracts “under investigation” the “facts of the circumvention” wouldn’t TECHNICALLY be known until the investigation finishes. It’s a shady way of interpreting it but altogether probable.
That said, I don’ think you’ll see the deals voided but I wouldn’t put it past the league to punish those teams to some degree.
by 88fingerslukee on Aug 10, 2010 12:03 PM PDT up reply actions
The important thing here...
Will IK and his Agent allow for a decrease in the total money earned? That money is $102MM, and it allowed him to save face for turning down ATL.
If NJ cannot restructure, IcKee is going to the KHL, to save face…
i was accused of being "irresponsible" previously when I suggested that IK should
fire his agent. But I stick by that. He should dump him right now. Get someone else. Clean slate. Make the deal he wants with whomever he wants. Grossman simply did not protect his client and he has every right to be pissed off.
Wait till this year.
It's very rare for a puppet to fight the puppeteer.
I don’t think Kovalchuk is strong enough to fire Grossman. His mom would do it. :)
It’s very rare for a puppet to fight the puppeteer
Like punching yourself out while wearing a cinched up straightjacket. Futile..
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 11, 2010 8:59 PM PDT up reply actions
Great Picture- I like Grossman's blue shirt and backpack, but who is the guy with Kovi?
End Corporate Personhood.
Completely off-topic (except it'll make you laugh!)
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 10, 2010 9:26 AM PDT up reply actions
You know, for all the grumbling on the Devils’ side about how the league let other contracts like Hossa’s through, in an odd way I think they ought to be grateful for that fact right now. If it’s true that the league doesn’t plan on imposing additional fines and cap penalties, I think that might be the only thing saving their butts.
Of course, it depends on how the league wants to proceed. Now they’re reminding everyone the investigation of the Hossa and Luongo contracts are still open…is that the only deterrent they will come up with? We shall see.
I do wish they had rejected those other contracts in the first place, but perhaps they didn’t have the nerve (and hoped the warnings would be sufficient). Or maybe they were waiting for a contract so extreme that winning would be a slam dunk.
In Dinglebarn We Trust
I’ve argued a time or two that at least Hossa, Pronger, and to a lesser extent Savard are two-way players, so even if their offensive skills deteriorate with age, they could slide back to third/fourth line and third pairing to serve as a veteran presence and spot-shift player. (Savard is more an agitator than a defender, but the same principle applies)
Kovalchuk, on the other hand, is much harder to image as a 38-year-old low-line player out there to play defensively responsible hockey. I’m not saying that’s an actual factor in the decision to bring this case, but a halfway intelligent agent or GM would probably involve that as part of their case on why the Hossa/Pronger/Savard contracts decline in payment – you won’t pay someone on the low lines the same amount as a first line forward or first pairing defenseman.
I got nothing for Luongo. That contract’s just bizarre.
Honor is no substitute for victory.
at least Hossa, Pronger, and to a lesser extent Savard are two-way players, so even if their offensive skills deteriorate with age, they could slide back to third/fourth line and third pairing to serve as a veteran presence and spot-shift player.
That is a good point. And I suppose with Luongo you have the age issue (statistically there have been more goalies than forwards playing past 40, IIRC). But Bloch was looking at two factors. Age, and the sudden dropoff in salary creating an incentive to retire.
But is Pronger’s contract in quite the same category anyhow? I thought you guys are still on the hook for that even if he retires because of the age at which he signed…but I confess I’m really fuzzy on the details. Is that true?
In Dinglebarn We Trust
Yes, it is a 35+ year contract and the cap hit stays no matter what,
but the low salary at the end still drops the cap hit so that the Flyers can sign other players.
His would be easy to restructure, though, to give him even more money up front, keep the cap hit the same, and raise the tail. The contract is $34.45 million over 7 years, currently structured at 7.6, 7.6, 7.2, 7.0, 4.0, .525, .525. It would be simple to rewrite the contract at 8.0, 8.0, 6.0, 4.0, 4.0, 2.45, 2.0, and pay him the same total amount, give him more money in the first two years, and not have as severe of a tail.
Part of the issue is that players will always want a front-loaded contract if they can get it – a dollar now is worth more than a dollar next year, and particularly in as uncertain a career as athletics, you want to get money as early as possible. The next CBA will need to find a way to balance this desire for frontloaded contracts with the need to avoid such attempts to deflate the cap hit.
Honor is no substitute for victory.
Or maybe they were waiting for a contract so extreme that winning would be a slam dunk.
Based on my own experiences, I would guess that was partly the case. If you look at Bloch’s Opinion, it was clear that, even with this contract, there were reasonable arguments that it could possibly be valid under the CBA. No single provision of it technically violates the CBA; taken as a whole, however, it certainly has the effect of violating the intent, if not the words, of the CBA.
With each of those other contracts, the balance may have even favored the PA’s position. The length was not entirely out of the question considering a handful of skilled players do play until they are 40, 41, or even 42. And when they do play at that age, their salary does decline in their later years to something in the $1-2M range (tho often with incentives). The cap hit on those contracts was not too far off from the maximum salary the player is receiving – I saw a comparison somewhere and on the worst of them, there is only a $2.6M discrepancy, if I recall correctly – as opposed to Kovy’s where his cap hit is just over 1/2 the maximum he is receiving. In the others, the contract tails off more gradually and less severely. Basically, the relevant terms of each of those contracts (except maybe Pronger’s) could be justified.
If the NHL had gone forward on one of those contracts and lost, they probably would have lost this arbitration. It is better to warn the other side, as they did with the Hossa and other contracts, that they are pushing the limit and further conduct would not be accepted.
Think of this situation as kinda like when you are a kid sitting in the back seat and your sibling next to you pulls the “I’m not touching you” thing where they are a fraction of an inch from poking you. You warn them that if they don’t stop, you are going to punch them. Then they slip and actually brush your shirt sleeve which, to you, is touching you, so you haul off and punch them. They go crying to mom and/or dad. If they pushed it far enough, mom or dad might tell you that you shouldn’t it, but will also tell the sibling that they probably deserved it. If you didn’t show enough patience in the situation, tho, you might end up being the one who gets in trouble. Basically, the NHL didn’t want to punch their sibling when the only justification was that the sibling was invading their space… but Lamoriello and Grossman didn’t just poke the NHL here, they poked it and left a mark and then loudly said “so what are you going to do about it.” So the NHL hauled off and punched them in the face and when the sibling whent running to their parents, their parent (Bloch) basically said “you pushed your sibling too far this time and should have known better; you deserved what you got so take it as a lesson for the future.” At the same time, they all turned to the third sibling (the rest of the league) and said “be sure you learn a lesson from this, too.”
Slightly OT but ....
Did anyone see DGB’s secret transcript of the hearing?
Hanlon's Razor: Never attribute to malice that which can be adequately explained by stupidity.
Does anyone else see the major flaw in building your team around 2 LWs? I still don’t get why NJ fans want Kovalchuk so bad when Parise is already on the team and willing to sign a long term deal.
They don’t have a #1 defenseman and Brodeur is set to retire in a couple of years with no one to replace him.
Frazee has been progressing well since he left college.
Dominik signed me for 20 years, and all I got was a press conference and a voided contract...
Contributor to Lighthouse Hockey not sure if I'm the Sniper or the Enforcer.
Interesting comments from Lou:
“I have no regrets on what we did,” Lamoriello said. “My responsibility is to do what is the best for the New Jersey Devils and give them the best opportunity to win within the framework of what the rules are.”
How is Lou going to get certified next July? Same for Grossman.
I, ______________, [GeneralManager or CFO or Club President], hereby affirm and
certify to the NHL that during the prior year I have not violated Article 26 (No Circumvention).
Further, I commit to abide by Article 26 and I agree that I will subject myself to the jurisdiction of
the System Arbitrator under Articles 26 and 48.
This certification shall be executed and delivered to the NHL by July 10 each year.
well, since Article 26 is the "No Circumvention" article, I don't think he can actually say he hasn't violated 26.
but i can see how he, his lawyers, and lots of other smart people might think he has the wiggle room to do that.
Wait till this year.
Quisp:
Does this mean that Bloch is indeed the system arbitrator (page 3 of his decision):
The National Hockey League Players’ Association ("NHLPA" or
"Association") protested the League’s action, filing the instant grievance July 26,
2010. The matter was heard before the undersigned, appointed as System
Arbitrator for purposes of this case3, on August 4 and 5, 2010.
3
See Article 48.1, "System Grievance", and Article 48.5, "System Arbitrator," infra, p. 8.
From page 20:
…the System Arbitrator here concludes the SPC terms themselves demonstrate this agreement
"has the effect of defeating" the provisions of the CBA, with particular reference
to the Team Payroll Range language.
Or can this mean simply he is only the SA for this one case? Is that even allowed by the CBA?
I saw that, too; it's ambiguous, especially given that there was already supposed to be a system arb in place and they had to whip one up over a week's time
the cba doesn’t say anything about appointing provisional or temp SAs. but since removing an SA is an option for either the league or the NHLPA prior to the (i think) 2/1 re-up date, there’s no reason I guess that they couldn’t have arranged for Bloch to do this case only. Maybe they said, come on man we need this and he said but i don’t want that job and they said just this once pleeeeeeeease.
I hope he stays on.
Wait till this year.
So here's a hypothetical for Quisp, DVLesq et al:
If you looked at the whole “Lou and the Kovalchuk contract” episode so far, including his “eyerolls” and more direct comments; and you thought that maybe, just maybe, the fix was in and there are somewhere email and/or text and/or ‘phone transcripts/recordings that may or may not come to light at some point showing that Lou and “The NHL” (go ahead, read Gary Bettman — not that he’d ever let his name be directly linked to anything other than a righteous win on the side of right and Truth and the Southern Strategy) colluded (that’s the term I want, I believe) to bring about this “ruling”, riddle me this: what theory can you come up with — details! details! — as to what they are/were after? Is it the first step to the Bettman Legacy New CBA? Don’t stop there. Run with it. It’ll take longer to prove you all to be right this time, but that just means I’ll enjoy the read (ride) longer. Sláinte!
And the man at the back
Said, "Everyone attack!"
I don't think you need to look for collusion or anything quite so dramatic. However:
1) the whole world noticed LL’s oddly candid/dismissive performance at the press conference. Even before the rejection, it was pretty clear there was some story there that wasn’t being told.
2) he specifically laid the whole thing at the feet of ownership. Which is not something he would do casually.
3) LL was (and is?) Bettman’s ally. So when the rejection came down, it was natural to wonder if that alliance was falling apart.
4) The league appears to have done an excellent job of arguing its case.
5) The NHLPA, not so much. I know Devilesque says the case they argued was legitimate. I don’t know what they really presented, only what Bloch says they presented. But from what I gathered from the Decision, their defense of the contract was thin. They didn’t stay up late enough. And I wondered (and still do) if their heart wasn’t really in it. I have no way to support that. And I could be totally wrong. (I expected a much more robust argument from them, that’s the main thing.)
6) since I think LL is basically a genius, I think if he really wanted that contract to go through, he could have been a prime-mover in the articulating of the NHLPA’s case. There are political reasons for him not to want to do that. But I don’t get the sense that the NHLPA’s defense of the contract was informed in any way by any kind of innovative Lou-like thinking at all. I know that the Devils weren’t officially a party of/to the arbitration. But Lou, as the smartest guy in the room, could have been the Scotty Bowman pulling the strings behind the scenes as the NHLPA established its case. I see no evidence of his presence at all.
I wouldn’t rule out LL allowing all this to happen simply because he wanted to hang the owners out to dry. What I mean is, LL didn’t want to do a deal like that (obviously it’s very uncharacteristic of him), so that plus the other stuff from the presser makes me think he was forced to do it (he all but says that with his comment about ownership). The eye-rolling etc says, this isn’t me and I know you all know this kind of thing isn’t like me at all. Also, the fact that the league told LL that they were going to reject the contract and LL went ahead with the press conf anyway, is odd behavior unless there’s an ulterior motive. People have speculated that the motive was to get IK half-pregnant with public declarations of love, so that even if the contract went south, he would have no choice but to stay with the devils. Or less choice. That’s not a horrible theory. But a simpler one is that LL told the owner(s?) their dumb idea of a deal wouldn’t fly and they said it would and he decided, the best way to get my way is to let them have their way.
Maybe that’s what you’re talking about.
But, for that to happen, Lou doesn’t have to talk to Bettman at all. All he has to do is make the offer his bosses are telling him to make.
Wait till this year.
What Occam thinks
Well, not that I know what Occam himself thinks. But I think the simplest theory for how and why this went down goes kind of like:
LL didn’t want to do the contract. He’d rather let IK go to the Kings or the KHL. But the owner says, we have to bag IK — and remember, I sign your paychecks. So LL rolls his eyes and does what he is told, even knowing that the league is making angry noises. At this point, he shrugs and figures he’ll retire in 2-3 years, once Brodeur and Elias and Langenbrunner have gone and the stuff starts to hit the fan. Certainly, he could start all over again somewhere else and be very successful, just like Bowman did. Because he’s a genius. So he does the deal with Team Kovy, but in the back of his mind he’s thinking, “Screw you guys, I’m going home soon.”
If I was to propound any kind of conspiracy theory, or theory of special bias against the Devils on the League’s part, it would be to suppose that because Bettman and LL have been so tight, Bettman might feel betrayed that the Devils, of all teams. would try to embarrass the League by doing such an outrageous front-loaded deal. Hence the rejection. And it might follow that Bettman would be especially motivated to punish the Devils. It hurts a lot more when the blow comes from someone you trust. The people you don’t trust, you already know they’re going to mess with you so it’s no surprise when they do.
So LL rolls his eyes…
But the owner says…I sign your paychecks.
"Screw you guys, I’m going home soon."
I never thought of it this way. Maybe.
Bettman and LL have been so tight…
This is the first sign that they’re not, do you think?
My take on Lou is that he’s never going to “retire”. He’s having way too much fun. He loves being the power behind the scenes, I think. He reminds me of a guy who says, “I’m a good guy to have around. I wouldn’t like it much if I weren’t around.”
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 8:41 AM PDT up reply actions
I guess I don't see LL retiring, either
He does seem like a lifer. But he’s also got enough cred that if he did ever walk away from the Devils, he wouldn’t have any problem finding another situation, building someone else’s team into a perennial contender. If he ever became a free agent, probably half of the teams in this league would push their current GM overboard to make way for him.
But he’s also got enough cred that if he did ever walk away from the Devils, he wouldn’t have any problem finding another situation, building someone else’s team into a perennial contender. If he ever became a free agent, probably half of the teams in this league would push their current GM overboard to make way for him.
Absolutely. But I think he really loves doing the Shelob/Iago thing. I think he’s got the Devils gig all comfy and it’s situated just a short trip from that building on Avenue of the Americas. You’re going to have to carry him outta there in a box.
Unless…does he have designs on the big chair in that very same building on the Avenue? Hmmm…
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 4:09 PM PDT up reply actions
5) The NHLPA, not so much. I know Devilesque says the case they argued was legitimate. I don’t know what they really presented, only what Bloch says they presented. But from what I gathered from the Decision, their defense of the contract was thin. They didn’t stay up late enough. And I wondered (and still do) if their heart wasn’t really in it. I have no way to support that. And I could be totally wrong. (I expected a much more robust argument from them, that’s the main thing.)
When I heard how weak the argument from the PA was, I started wondering if it was just a pro forma thing – they understood it wasn’t good for the majority of their membership, but they believed they needed to be seen to be defending a member, so they put up a weak argument. If they won, fine. If not, they actually helped out the players that don’t have front-loaded contracts, and could say that they had tried to defend the contract, but it was just too extreme.
Honor is no substitute for victory.
NHLPA had a weak argument
because the contract was a joke. Lou couldn’t even defend it to the press.
What defense could they have tried? The arbitrator thought the other contracts are BS too and the argument that the NHLPA had was that the sum of the parts were greater than the whole. This was doomed from the beginning.
The big problem for the NHL now is if the Devils sign Kovalchuk for less money and a still low cap hit. Then it will look like collusion between Bettman and Lou. The other owners will demand punishment for the Devils. Likely a hit to their cap.
Nothing in the Kovalchuk saga would surprise me anymore. All the “experts” that had Kovalchuk going to the Kings are now saying that NJ is the only choice left now.
NHLPA had a weak argument because the contract was a joke. Lou couldn’t even defend it to the press.
Exactly. And Lou and the Devils’ cap guy (name? can’t remember) more or less wrote the CBA for the league, didn’t they? So what was the reason for submitting it? Lou knew it wouldn’t fly in advance.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 8:46 AM PDT up reply actions
…I started wondering if it was just a pro forma thing…
No lawyer, me, but I only put up a pro forma argument if (a) there’s no point in trying to win, it’s a foregone conclusion; and/or (b) I’ll live to fight another day.
…they understood it wasn’t good for the majority of their membership…
The greater good? Interesting.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 8:51 AM PDT up reply actions
since I think LL is basically a genius
And so why the obvious, clumsy eye-rolling and the press conference and all the other comments?
obviously it’s very uncharacteristic of him
If it was one thing, one time it’s a slip and even LL is entitled to one of those. The whole series of actions is so far from being characteristic of him that it can’t be ignored. What conclusions can be drawn?
1. LL is losing it and this will be recalled as the first sign. Unlikely, but possible.
2. LL did this on his own stick. Very unlikely unless 1. is the case.
3. LL did this for someone else and it is the other party’s lack of LL’s trademark subtlety that shows. Possible, but if he did it for someone else and agreed with it, he would more likely do it his way, one would think.
4.LL did this for someone else and did it clumsily as a flag to others that it was not his idea and/or as a response to that someone else.
Other conclusions could be drawn, but the question remains: why did he do this in the way he did?
LL was (and is?) Bettman’s ally. So when the rejection came down, it was natural to wonder if that alliance was falling apart.
Interesting perspective. Mine is: LL is Bettman’s ally. LL negotiates, signs and submits the contract. What are LL and GB up to?
LL may or may not be a genius, but GB is far from being a stupid man. He is very smart, is an excellent planner and is very very good at playing politics à la Machiavelli with the owners while using the media. He acts publicly only when the result is in his favour. He rarely, if ever, loses even a skirmish, let alone a batlle or a war. Let’s just say his sphincter control is legendary. If he used this episode as an early gambit in his new CBA campaign, what might he be planning?
The league appears to have done an excellent job of arguing its case.
Such an excellent job that it appears that they knew what was coming and had prepared for it in advance, that there would be no surprises. As if it was engineered to happen that way.
The NHLPA, not so much…their defense of the contract was thin. And I wondered (and still do) if their heart wasn’t really in it.
Indeed. Sort of a token thing? The kind of defense they might put up when they know the conclusion is foregone and the real battle is yet to come?
I think if [LL] really wanted that contract to go through, he could have been a prime-mover in the articulating of the NHLPA’s case. There are political reasons for him not to want to do that.
GB might be a “political reason” here, in his * cough cough * official capacity representing the owners, of course.
But a simpler one is that LL told the owner(s?) their dumb idea of a deal wouldn’t fly and they said it would and he decided, the best way to get my way is to let them have their way.
Well, maybe. But if he is the genius you think he is does tell the owner (I believe there’s one majority owner) what he thinks of him like this? I don’t know about that. I haven’t seen any evidence that he would. This is the guy who signs his cheques. The guy who can turf him out of The Kingdom of Lou with two words. But he might have told the owner that this is the way to get Kovalchuk much cheaper, that’s a possibilty. Even for LL, though, that’s really the long way around.
to get IK half-pregnant
I just know that there is a dry, stuffy Latin legal phrase for this, but I like your wording much better. I’m going, with your permission, to use your phrase often. Yes?
I still think there’s something going on behind the scenes with Gary and Lou, but only time may tell. Or maybe not. Either way, thanks for your response. I enjoyed it.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 8:29 AM PDT up reply actions
The Lou/Bettman thing is a puzzle that we can't finish because we don't have all the pieces (not that we can enjoy ourselves trying to figure out even what the missing pieces might look like...)
Such an excellent job that it appears that they knew what was coming and had prepared for it in advance, that there would be no surprises. As if it was engineered to happen that way.
Well, I wouldn’t go that far. They made the exact same argument I made on this blog, and I didn’t need any inside information to do it.
Wait till this year.
No, you wouldn’t go that far. You’re a lawyer, have I got that right? If so, big C for Cautious and Conservative…in my experience, at least!
Go ahead though. Try to figure out what the pieces might look like. That’s why I asked the question originally.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 12:01 PM PDT up reply actions
I found this interesting.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 2:08 PM PDT up reply actions
And this.
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 2:31 PM PDT up reply actions
The thing about Kelley’s article that jumped out at me is that he seems to find it “chilling” that Bloch found out that the other contracts were still technically under investigation. As if it was supposed to a state secret, or something. But Quisp knew about that. So… what the heck?
Friedman makes some points that I find very interesting. He does make a persuasive case that voiding some of those contracts might actually do the teams that proposed/agreed to them a favor by mitigating the consequences after they’ve already enjoyed the benefits. Better to let them stew.
And I can see the point that Bettman has now installed a Sword of Damocles that is more fearsome if it keeps hanging.
But Quisp knew about that. So… what the heck?
Agreed. He’s being a bit overdramatic there. Of course, he probably isn’t writing for the elite, Quisp-edified readers here.
And I can see the point that Bettman has now installed a Sword of Damocles that is more fearsome if it keeps hanging.
I can’t stand what he means for the game we love, but boy he is one slick sonuvagun, isn’t he?
And the man at the back
Said, "Everyone attack!"
by Joe Hockey Fan on Aug 12, 2010 4:01 PM PDT up reply actions
thanks for pointing me to the kelly article. i'm doing a post on it for tomorrow.
the “chilling” bit is just stupid (as you point out) since it’s been in the f***ing news for about the last year. And if it hadn’t been, the league would certainly have brought it up in its argument (as I did in my mock league argument) because it totally defuses the whole precedent argument.
the msm in general is being even more polar than I thought they were going to be, when I pointed out, the morning that the ruling came down, that they’re conveniently all so certain it’s going to go the nhlpa’s way, and then when it doesn’t, bring on the outrage and apocalypse.
hilariously, I’m quite sure I was the first one to raise the whole “forfeit the cup” scenario. I used it as part of an argument for why bettman wouldn‘t go after the other contracts. kelly seems to be seriously considering the possibility. or maybe i’m just imagining that. it’s been a few hours since i read the thing.
anyway, i’ll post on it tomorrow.
Wait till this year.
Hockey Insiders :shakehead:
I can’t believe that the hockey “insiders” can’t figure out that future Hossa’s type deals are now gone. Wasn’t that the whole point in voiding Kovalchuk’s contact? They act like the NHL needs these stupid 12+ year deals. They almost never existed before the cap was put in place. What is wrong with 3-7 year deals again? Level the playing field, isn’t that what the cap was for?
If a player wants insane cash, they will cripple the team they are on, as it should be. Players that want to be selfish can remain on the crappy teams.
the thing they all seem to be missing is that if no one gets those deals then the prices for those guys will come down
and no one will be penalized. i mean, except those 15 or 20 guys who would be able to get those contracts. teams will be welcome to saddle up like WAS did with AO’s contract, but at some point you have to start cutting costs. and that’s a good thing. because it will reward smart gms who have balanced rosters and patience and a steady flow of incoming prospects on ELCs.
there’s a reason that teams employ “capologists” to wade through this stuff, and (presumably) lawyers to read the CBA.
Wait till this year.
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