Tampering Shmampering (Mulletgate, cont'd)

Smyth Trade Fallout, Tambellini Vs. Lombardi Grudge Match - Page 25 - HFBoards

from dobiezeke

from Thalaros:

More like tampering. Lombardi should end up getting a hefty fine if it does turn out that all of the dust he's kicked up has been for naught, given leaking two players health records, a slandering a fellow GM for what seems to amount over a different of opinion of medical staffs. Sadly, I doubt the NHL does anything to publicly punish Lombardi if that's the case.

If this deal closes, I believe the public shame of appearing like a whining child will be punishment in itself. If ST comes out of this as a questionable trade partner, how wary will the other GM's be in trading with Lombardi?

  • It's only slander if it's false and malicious. It's neither. Tambellini did in fact attempt to trade two injured players to the Kings. Tambellini did in fact present these players as healthy. They turned out, in fact, to be injured. 
  • Lombardi didn't leak anyone's health records. The concussion symptoms issue (with Gilbert Brule) was reported by Darren Dreger, and (as if this weren't obvious) is an important detail in a news story; that is, of the Ryan Smyth trade and how and why it fell apart...and is threatening to fall apart a second time due to the injuries of Colin Fraser
  • Now, about that "tampering" -- the idea here is that Lombardi might be tampering with another club's player by revealing that, should the trade fall apart, he has other potential trade partners (and has received calls along those lines). The problem with this line of reasoning is it's circular:
  • It's only tampering if the player in question (Smyth) is Oiler's property. But if the trade falls apart, he's not Oiler's property. So it's not tampering. Unless the trade doesn't fall apart. In which case, there's no need for Lombardi to trade Smyth to someone else, because he's an Oiler. 
  • You may be interested to know that the CBA doesn't weigh in on tampering by clubs. The rule against tampering is to be found in the NHL By-Laws, specifically Section 15, which states: 

TAMPERING OR NEGOTIATING WITH PLAYERS AND CERTAIN NON-PLAYING EMPLOYEES OF OTHER CLUBS

15.1.

(a)

Except as provided in Section 9a.5 [regarding free agency], no Member Club...shall -- directly or indirectly -- tamper, negotiate with, make an offer to or discuss employment with any player, or his agent or representative, with respect to whom another Member Club has either the professional rights or the right to negotiate for said professional right without prior written consent of that Member Club.

[...]

(c)

The making or causing to be made, through any medium, public or private, any statement indicating any intention or desire of or interest in acquiring the services of any person referred to in (a) ... may, at the discretion of the Commissioner, be deemed to be a contravention of this By-Law.

[...]

15.2

For contravention of this By-Law the responsible Member Club may [...] be lieable to any or all of the following penalties [...]: (a) A fine of not more than Five Million Dollars [...]. (b) A prohibition of the employment of the person who was the subject of tampering, either permanently or for any lesser period of time. (c) The deferment of the offending Member Club of its choice in any draft proceedings [...] following the offense. 

 

  • The key phrase being "with respect to whom another Member Club has...the professional rights." Edmonton only has the professional rights to Ryan Smyth if the trade is finalized. 
  • Now, it may seem to everyone in the free world that the trade has been finalized -- and as much as no-one wants to hear this, not Kings fans, not Oilers fans -- this trade is not done. 
  • Proof of this is the presence of a phrase we've heard a lot in the numerous articles on Mulletgate: "void the trade." Usually, it's in the context of "the Kings don't want to void the trade." But Lombardi -- in the offending quote -- is telling us something important, and different, namely: we want this to work out with the Oilers either taking Fraser back or adding a draft pick or some other fair resolution...but if not, voiding the trade is still a possibility. 
  • That's what you call "a shot across the bow."
  • Now I can see why Oiler fans might be freaking the **** out. They are over the moon that Smyth is an Oiler again. They don't want to hear that he's not, that he could be taken away from them, that this could all be a cruel hoax. Because they believe Smyth is truly theirs in every sense, it makes perfect sense that they would see Lombardi's comments as tampering, because it's emotional tampering. Lombardi is tampering with their dreams. 
  • Tampering with your dreams is not prohibited by the CBA, the NHL Constitution or its By-Laws. 
  • Lombardi's position, by definition, is that this trade is still to some degree unresolved, i.e. not final. Since it is not final, Smyth is -- in this single, horrible sense -- still Kings' property. All Lombardi has to do is push to void the trade and it will likely be voided. 
  • If you object to the use of "likely" in that sentence, just substitute this: voiding the trade is still possible. It's not off the table. 
  • Luckily for everyone, Lombardi does not want Ryan Smyth back. Oilers fans should be thanking their lucky stars that this is true. 
  • It seems pretty likely that people will compare this scenario to the Leafs/Sedins tampering case. There is a key difference. A GM is not allowed to make it known that, should player x become a free agent, he (the GM) will make an offer. That's because the player may make choices (e.g. not negotiate with current team, wait for free agency) that he wouldn't make absent the tampering. However:
  • In this case (Mulletgate), Smyth doesn't have a choice. There's nothing to tamper with. Whether he's influenced or not is utterly irrelevant. The league will either rule to amend the trade, certify the trade as is, or void it. 
  • This is between Lombardi, Tambellini, the league and the players' union. GMs are allowed to talk to fellow GMs all they want. And, for the purpose of Section 15, the league itself (you might be surprised to learn) is considered part of the Member Club that controls the rights of the player, so it can never be accused of tampering. 
  • One more thing: I believe we are in the midst of an Article 17 grievance, or -- at least -- the parties are following the guidelines described and required by Article 17 of the CBA. Specifically, Article 17.7:

17.7 Procedures for Determining Fitness to Play.

[...]

(a) At any time a physician selected by a Club makes a determination as to whether or not a Player is disabled and unable to perform [...] such physician shall [complete] the form attached hereto as Exhibit 25(A), which shall be provided to the Player [and] the Club as well.

(b) Within seventy-two (72) hours of receipt [...], the Player may provide notice to the Club that he is seeking a second opinion [...]

(c) The physician consulted by the Player [...] must make a determination as to whether the Player is disabled and unable to perform [...], by completing the form attached as Exhibit 25(A) [...].

(d) If [...] the Club physician and the physician retained by the Player agree that the Player is either disabled and unable to perform, or not disabled and able to perform [...] their agreed-upon determination shall be evidenced by completing [...] Exhibit 25(B) [...]. Such determination shall be conclusive, final and binding [...]. However, if the Club physician and the physician retained by the Player cannot agree on whether the Player is disabled [...], they shall evidence such disagreement by completing the form [...] Exhibit 25(B), [...] and shall confer and agree on an independent physician to examine the Player. [...]

(e) [...] The independent physician shall make a determination of whether the Player is disabled [and will complete] the form [...] Exhibit 25(A) [...]. (f) The independent physician's determination as to whether the Player is disabled [...] shall be conclusive, final and binding [...]. 

Lombardi mentioned the independent physician in the same interview where he uttered the now-controversial tampering language. Lombardi indicated that the independent physician ruled Fraser was indeed injured and that they should wait two weeks to see if his four month old injury spontaneously healed itself in that time. Lombardi made pointed reference to the fact that the question of whether the player was ready to begin full training (the Tambellini assertion) on that fated "Wednesday" has definitively been settled (no, he was not ready). The only thing up in the air is, will it take two weeks and no surgery, or four months after surgery, for Fraser's injury to heal. 

In any case, it looks to me like we're following Article 17.7 procedures here. Something to consider if you happen to be one of those Oiler fans who is complaining that Lombardi shouldn't whine the press; if he had a case, he would take it up with the league.

He has. And this is what it looks like. 

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