The NHLPA's Case

A couple of days ago, I laid out what I, in my uninformed opinion, believed was the league's case against the Kovalchuk contract. I thought I'd take a stab at the counter-argument.

Conventional wisdom in the Kovalchukkosphere says the NHLPA case goes something like this:

• The contract follows the "letter" of the CBA, and that's all that's required.
  
• Clubs are allowed to exploit loopholes in the CBA to one's advantage. In fact, it's good management.
  
• The contract is just like all those other contracts (Hossa, Luongo, Zetterberg, Pronger, Franzen), which the league approved.

My reaction to each of these points is covered in excruciating detail in the post linked above. My bottom line, though, is (1) unless the arbitrator prohibits deductive reasoning, the "letter" of the CBA will be treated as a starting place from which to deduce what the CBA requires to be done about this contract; especially since the CBA specifically protects the "intent" of the CBA as well as the "letter" of the CBA; (2) the purpose of this arbitration is essentially to determine what the nature of this loophole really is, i.e. maybe it's not a loophole at all; (3) the NHLPA's argument is substantially (if not fatally) weakened if the arbitrator thinks the Kovalchuk contract is different from the others.

In different ways, (1) and (2) both beg the question. And (3)...well, I think it will all come down to (3), because whether or not the arbitrator thinks the Kovalchuk contract is worse than the others, may be the difference between the NHLPA fighting uphill or downhill.

The NHLPA has to persuade the arbitrator that the differences between the Kovalchuk and Hossa deal are insignificant, and that, if Hossa is allowed, Kovalchuk must be. They will need to to convince the arbitrator that the odds of Hossa making it to 42 are no different than Kovalchuk making it to 44, i.e. neither is reasonably likely.

But the NHLPA also has to be mindful of the possibility that the arbitrator may decide (or already believe) that the Hossa contract ought to have been rejected in the first place. Saying Kovalchuk is just like Hossa only works if the arbitrator believes the Hossa deal is solid. If the arbitrator thinks it's not...well, there's not much the NHLPA can do. I guess the game would be over at that point.

[Several hours and some re-thinking occurs between these two paragraphs.]

But not necessarily. There is one argument the NHLPA could attempt, if the arbitrator seems opposed to all the front-loaded retirement deals.

Unless I'm misreading the CBA, the arbitrator can't touch the Hossa contract in this arbitration, even if he thinks the Hossa and Luongo deals, and the rest of them, are bogus.

(Frankly, I don't even know what would happen if he decided -- in the privacy of his own mind -- that they're all circumventions. Is he allowed to say so? It seems to me, having a point of view on those other contracts is required in order for him to reach a decision on this one. Can he say, in essence, I don't think those other contracts are kosher either, but I will reserve final judgment on them until or unless the league decides to press for a hearing on those matters? My guess is, the arbitrator is allowed to refer to the other contracts, and even offer opinion, but he probably has to couch everything -- re the other contracts -- in non-binding language.)

Maybe the NHLPA's best chance is to drive home the point that, not only are the Kovalchuk and Hossa (etc.) contracts the same, but by rejecting one, it leaves it up to the league's discretion whether it wants to meet up with the system arbitrator at a later date to throw out the Hossa deal, and maybe the Luongo deal, too, and maybe Zetterberg and Franzen, etc.. And some very disturbing consequences arise from throwing out those contracts. For example, if the arbitrator rules that Hossa's contract is void, then the commissioner has it entirely within his discretion to declare any and all games Chicago played with Hossa last year retroactively forfeit.

Obviously, Bettman -- unless he actually literally loses his mind -- wouldn't do anything of the sort.

But the NHLPA could argue that ruling against the Kovalchuk contract would lead to de-registering at least some of those other contracts, at which point there would be massive grievance filing from all corners of the league (Detroit, Vancouver, Philadelphia, etc.), possible defections of players whose contracts are de-registered, all of which would be the #1 NHL story for the foreseeable future, which would be catastrophic for the league in this fragile state etc., etc., long argument short: it's simply too destructive to go down that path, for the league, for the players, for everyone. The NHLPA would be arguing, in essence, that the NHLPA and the league are on the same side, the side of preserving the NHL. Yes, they all screwed up when they left themselves open to these contracts, but what's done is done, and luckily there are only a couple more people this could apply to (next summer) before the loophole is closed and the problem is solved.

In other words: the NHLPA could argue that the Kovalchuk contract has to be taken in context, and in the context of the way business has been done since 2005, this contract is allowed. We all screwed up by allowing the loophole, but it's unfair to penalize the players, the clubs and of course the fans (cue John Williams score) by inflicting on them the instability that would certainly result from trying to put the genie back into the bottle, rather than simply getting rid of the genie entirely in 2012.

Frame the whole thing as damage-control, and frame the league's case as having the intent of damage control while having the unintended effect of causing further damage. Make voiding the contract equal to cutting off your nose to spite your face. And hope the arbitrator doesn't want to be the guy whose ruling destroyed the league.

Meanwhile, back in reality, I don't think the NHLPA made anything like this argument over the last two days. And the decision, whichever way it will go, has probably already been made.