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Penalty for Circumvention is Your Sanity

Circumvention of the Kovalchuk Black Out, I mean.

When I said no posts till he signs, I guess I meant 50 posts. Also, I guess i should have been more specific about the word “signs.” Everything is pretty quiet now, except for the clicking of the keyboards in the proverbial basements of the Kovalchukosphere. The league, the NHLPA and the GM have all essentially declared radio silence. The NHLPA has until Monday to decide whether or not to dispute the rejection of the contract. At which point, to repeat what we already know, this is what will happen.

  • If they notify the league of their intention to dispute and notify the arbitrator as described in (I believe) 11.6g, then there will be an arbitration hearing.
  • 11.6g essentially says that, during the summer, the NHLPA has five days from when the rejection notification was given to them by the league, and if they decide to dispute, they have 24 hours (from when they notify the league of their intention) to notify the arbitrator. If they do this, there’s an arbitration. If they screw up the deadline, say by not notifying the arbitrator within 24 hours of notifying the league, then they have not timely disputed and Kovalchuk’s contract is void. So, you know, don’t let Dale Tallon do the faxing.
  • The arbitrator will make a decision within 48 hours of the time he is notified by the NHLPA.
  • So that means, NHLPA decision by Monday at the latest, contact arbitrator by Tuesday at the latest and a decision by Thursday at the latest.
  • His/her decision can be, (1) yes the contract is valid, or (2) no, it is not.
  • If it’s valid, the contract is at that moment approved and registered. If it’s not, Kovalchuk is a UFA.
    If Kovalchuk is a UFA, everyone begins the process of freaking out over whether or not he’s going to sign in New Jersey. We return to 7/1 and all of the misinformation is recycled. “I’m hearing that”, “sources say”, “finalizing”, “closer”, etc..
    Simultaneously, the extremely slow wheels of justice awaken the Article 26 subsection on investigations and (apparently, though insanely) a second arbitration process commences, which is, I guess, more or less equivalent to the “sentencing phase” of a court trial, because Article 26 must be traversed like a haunted forest in order to get to the penalties. So, saddle up. This is the time-line:
  • The league and/or the NHLPA must first decide that they want to launch an investigation into whether the circumvention that has already been alleged by the league and upheld by the arbiter, did in fact occur. Or, presumably, that other circumventions they found along the way also occurred.
    The investigations can be initiated at any time, without limitation. They can decide not to investigate and then years later decide to change their minds. No time limit.
    Once they commence their investigation into what they’ve already concluded, they have virtually unlimited access to everything they want and can take as long as they want to conduct their investigation, without limit, till the end of time or even 2012 if they so choose.
    At some point, the league and/or the NHLPA decide they are done investigating and they call each other to communicate this.
    Despite the fact that the investigation may have taken 1000 years to complete, once they have called each other, the parties have three days to get together and discuss. They “shall” do this. If they do not manage to do it within the three day limit, the CBA does not say what the ramifications are, but I can’t help but notice that this act in and of itself is a circumvention of the CBA.
  • There are no provisions to account for what happens if humans no longer are the dominant species on Earth or in the NHL.
  • The league and the NHLPA (or their descendants) meet to discuss, to “to try to resolve the matter.” The first step, presumably, is to detect what “the matter” is, since the contract is dead and the season has started and/or the sun has gone super-nova and the first arbitrator’s decision is binding.
  • Although the league and the NHLPA are required to sit down and talk things out, they can’t really do any “plea bargaining” because the commissioner can’t negotiate any kind of penalty until after the (second) arbitrator has ruled.
    The second arbitrator gets to rule on whether a circumvention has occurred and if so specifically of which provisions of the CBA. I type this under duress, because it makes no sense. Because the first arbitrator has already ruled that there is a circumvention and accordingly has voided the contract. The first arbitrator’s decision is binding, so the second arbitrator can’t change it. I suppose the point is that the second arbitrator is merely refining the details of the circumvention, but it would have been nice for the CBA to spell this out.
  • So the arbitrator rules on which provisions of the CBA were circumvented (or else he/she rules there was no circumvention, at which point the Earth’s crust folds in on itself).
    After such ruling, Bettman gets to decide which penalties and remedies he wants to apply.
    There is some debate about whether there are any mandatory penalties. My interpretation is that, if an Article 50 circumvention has occurred, a fine and cap penalty of between $1MM and $5MM must be leveled. However, most people believe that, because the CBA says the commissioner “may” assess any and all of a menu of punishments, that the cash/cap penalty is optional (at Bettman’s discretion) but if he chooses to level a fine/penalty, it can’t be more less than $1MM or more than $5MM. Because, obviously, a fine of $500K or $2 is lame in some unknowable way that a fine of $0 is not.
    He also at that point has the option of suspending Grossman, Lamoriello, or any other bad actors, or, presumably, their heirs or estates.
  • At which point, the whole matter is closed. /

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