Are the league and the NHLPA circumventing the CBA? (hint: if the reports are true, the answer is yes)

Here's our old friend, the Collective Bargaining Agreement:

26.4 Circumvention by NHL or NHLPA. It shall be a Circumvention for the NHLPA or the NHL to engage in any conduct prohibited by Section 26.3. It shall not be a Circumvention for the NHL or the NHLPA to advise their respective constituents as to whether specific practices comply with this Agreement.

What's in 26.3? Well, everything. But keep this in mind: 26.3 describes circumventions by players or clubs (or player actors or club actors). 26.4 extends all of these prohibitions to the league and the NHLPA itself.

26.3(a)

No Club or Club Actor, directly or indirectly, may: (i) enter into any agreements, promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind, whether express, implied, oral or written, including without limitation, any SPC, Qualifying Offer, Offer Sheet or other transaction, or (ii) take or fail to take any action whatsoever, if either (i) or (ii) is intended to or has the effect of defeating or Circumventing the provisions of this Agreement.

So, per 26.4, the league and the NHLPA may not enter into any agreements, promises, etc., that have the effect of circumventing the CBA. And:

26.3(f)

No Club or Club Actor or Player or Player Actor shall induce or attempt to induce any other Club or Club Actor or Player or Player Actor or cause any other Club or Club Actor or Player or Player Actor to be induced to engage in any Circumvention that violates this Section 26.3.

But in case you're wondering if the NHL or the NHLPA can be covered by the term "club/player actor":

26.2 Undisclosed Terms and Revenues. A Club (directly or indirectly through a "Club Actor," i.e., any owner, shareholder, Club Affiliated Entity, the NHL or third party acting at the behest of a Club) and a Player (directly or indirectly through a "Player Actor," i.e., his Certified Agent or any other individual, any entity, or the NHLPA, acting on behalf of the Player) may not, at any time, enter into undisclosed agreements of any kind, express or implied, oral or written, or promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind involving consideration of any kind to be paid, furnished or made available or guaranteed to the Player, or Player Actor, by the Club or Club Actor either prior to, during, or after the term of the Player's SPC.

Why am I bringing this up? Well, it has something to do with this evening's news. I'll give you the clippings in a second. The general plot is: the ever-reliable New York Post says that the league has issued a secret ultimatum to the NHLPA, the effect of which is a prohibited agreement (if the NHLPA agrees), whereby the league will approve the Kovalchuk contract (despite the fact that it will otherwise reject it), if the NHLPA agrees to a bunch of amendments to the CBA.

Let me just pause here for a second to say I think there's a decent chance the Post is pulling this out of its hat.

A couple of points before I start with the cut/paste:

  • The CBA is binding. There is no provision for amending or renegotiating it. I don't know anything about the ins and outs of labor law, but I would be willing to bet changing what is essentially the beating heart of the NHL CBA (the salary cap, Article 50, etc.) is frowned upon from a legal perspective. At the very least (in a world in which I am wrong and these things happen all the time), there's no way the CBA gets changed without a full vote of the owners and the player population, since these are the guys who pay the league/NHLPA salaries. And that -- voting, I mean -- isn't going to happen without meetings and lawyers and negotiations -- you know, like when you're negotiating a CBA. Like, for example, the year 2004 and most of 2005.
  • Changing the rules of how cap hits are calculated -- IN THE MIDDLE OF THE TERM OF THE CBA -- is fundamentally unfair to all players who didn't cheat back when it was cheating and all players who now don't get to cheat now that the rules are different. That is more of a circumvention of Article 50 than the original Kovalchuk contract. 
  • For the league to use the approval/rejection of the Kovalchuk contract as a bargaining chip manifestly undermines the salary cap system because it is in effect saying this: (1) whether or not this contract is actually a circumvention according to the CBA is irrelevant; (2) the league's ruling -- whether it says it's a circumvention or not -- is available in trade for favorable decisions on the part of the union. 
  • There can be no, "do this or we'll reject the contract, even if it's valid; and if you do what we ask, we'll approve the contract, even if it's a circumvention." There is only "we reject it because it is prohibited by the CBA," or alternatively, "we approve it because it is allowed by the CBA." 
  • The CBA prohibits back-room dealings. And that's what this is.
  • As far as I can tell, the CBA doesn't say anything about penalties for the league or the NHLPA for circumvention. But I can imagine some peoples' employment contracts do.
  • This is so blatent in my opinion that I have to believe the ultimatum reports must be wrong in some crucial way. Otherwise, it strikes me as very, very destabilizing.

So, anyway, here are the clips:

Twitter / Darren Dreger: Don't be surprised if the ...
Don't be surprised if the Kovy extension is extended on Friday, plus...it's a longshot, but there could be a rule amendment by the end of wk

Kovalchuk decision delayed as NHL, NHLPA debate CBA - Puck Daddy - NHL  - Yahoo! Sports
Wednesday, the ante was raised: Not only is Kovachuk's long-term contract at issue, but the current language in the CBA that deals with such contacts as well. [...] The NHLPA and NHL are in talks that go beyond the Kovalchuk contract's validity.

NHL gives Players Assn. ultimatum on Kovalchuk, Luongo, Hossa - NYPOST.com
[...] A well placed source reports that the league has informed the Players' Assn. that the league will grandfather the recently submitted Kovalchuk 15-year, $100M contract, Luongo's [...] and Hossa's [...] deal [...] into the CBA under the following conditions: 

1. That the cap hit on future [...] contracts will not count any seasons [...] with the player over 40 years of age. [...]

2. That the cap hit on future contracts longer than five years will be calculated under a formula granting additional weight to the five years with the highest salary.

The league has given the PA [...] until Friday at 5 pm to accept these conditions. If the PA refuses [...] the league [...] will reject the Kovalchuk contract [...] [void] the Luongo contract [and] open proceedings for a formal investigation into the Hossa contract.

EJ Hradek on Twitter at 9:40PM
On NY Post story (http://bit.ly/9U9s69) concerning NHL/NHLPA Kovy talks, Deputy Commissioner Bill Daly says, "No ultimatum has been given."

So at least there's hope that this is all ****ing made-up ****-****.

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