Thursday, December 12, 2013
My TSN article entitled Why The Delay On The Thornton Suspension?. Click here to read it.
Click here to listen to my segment with Steve Lloyd and Jason York on TSN 1200. We hit lots of hot topics.
Thursday, December 5, 2013
Last night on Offside, I interviewed Steve Silverman and Trevor Whiffen. They both have very different views on the merits of the NHL concussion lawsuit.
Steve is the managing partner and lead lawyer for the players on the lawsuit.
Apart from being the Governor of the London Knights, Whiffen founded the Ice Dogs with Don Cherry. He is also Rick Vaive's lawyer. Vaive pulled out of the NHL concussion lawsuit after it was filed. According to Whiffen, Vaive wasn't aware of the broad scope of the lawsuit.
Both Silverman and Vaive provide great content and Whiffen was pretty passionate. Click below to listen to their interviews:
Tuesday, December 3, 2013
Thursday, November 28, 2013
There are reports suggesting that the NHL concussion lawsuit has resulted in the recruitment of over 200 new players to the litigation. These players would join ex-players like Rick Vaive, Gary Leeman and a fella named Morris Titanic (perhaps the best name ever).
While that’s how it may look, that is in fact not the case. It is a far more likely scenario that the majority of these players signed retainers some time ago indicating that they would participate. However, they were not named along with the 10 plaintiffs simply because in a class action lawsuit, lawyers only need to name a handful of plaintiffs who operate as representatives of the entire class.
So it's an incorrect assumption that the filing of the lawsuit resulted in the recruitment of new NHL players. The names of the other unnamed hockey players will be made available in the near future – but just not right now.
All that aside, the filing of the lawsuit will undoubtedly be used as a tool to inspire others to join. In fact, if you’re a player and want to join, you need only go to the plaintiffs' law firm website and click on “Sign up to be part of the NHL Concussion Lawsuit”.
Tuesday, November 26, 2013
Click here to read my article on Semyon Varlamov. I hit on his assault charge, possible deportation and his link to Kobe Bryant.
Click here to read it.
Thursday, November 21, 2013
What did the briefcase ever do to A-Rod? Not terribly nice to kick it when the briefcase has been there for A-Rod and carried his things (sandwiches, Fanta and a mirror).
Anyway here's my radio clip on the matter with the boys at TSN 1200.
Anyway here's my radio clip on the matter with the boys at TSN 1200.
A-Rod kicked his briefcase and then stormed out of arbitration. He wasn't happy. Click here to read my TSN article "What Does A-Rod's Walk Off Mean". I cover what went down and what's next.
Wednesday, November 6, 2013
Thursday, October 24, 2013
by Max Faille
Max Faille is a law partner. He's a great lawyer and practices in the area of Aboriginal Law.
Under the editing standards of this and most websites, and respectable publications across the English-speaking world, I would not be able to write that ugly racial slur to describe African-Americans, commonly referred to as the “n-word,” under any circumstances. Even if to denounce its use. Yet under those same standards I can readily use an equally ugly racial slur, directed at Aboriginal people: Redskin.
It’s used all the time, mostly to describe Washington’s NFL team, whose owner Dan Snyder insists will continue to be called that name, despite the fact that it is a racial slur. Despite the fact that a growing number of publications and sports writers have denounced it or decided that they will refuse to use it in their sports coverage: Bob Costas, Sports Illustrated’s “Monday Morning Quarterback” Peter King, Slate Magazine, USA Today Sports’ Christine Brennan…
People will say that this is “political correctness” run amok. It’s not. Throwing out the term “political correctness” should not be a conversation-ending nuclear bomb that stops us from actually thinking about an issue.
Look at it this way: Tyler Bray is a third-string rookie quarterback with the Kansas City Chiefs, after being a standout at the University of Tennessee. He also happens to be a tribal member of the Citizen Potawatomi Nation in Oklahoma. If someone on the field were to call him a “redskin,” that person would almost certainly be disciplined by the league – fined, maybe suspended. Rightly so. Just as someone would be disciplined if they called an African-American player an “n-word” or “monkey” or some other equally despicable term. These and other racial epithets have no place in any athletic contest that purports to be honourable. This begs the question: how can a professional sports league tolerate having one of its franchises be called a name that if used on the field of play would result in disciplinary action by that same league?
Let’s be clear. When the term “Redskins” was originally chosen in 1931, it was not intended as a slur. Franchises obviously select names that they feel will honour their team, not disgrace them. But times change. The meaning we attach to words evolve. There was a time when we used the word “coloured” or “negro” to describe African-Americans. Martin Luther King Jr, in his famous “I Have a Dream” speech used the word “negro” eight times. In baseball, we had the famous “negro leagues.” But can we imagine a team today called the New York Negroes? No. Word meanings change. Thinking and society evolve, hopefully for the better.
One thing that has evolved, hopefully for the better, is that we no longer use skin-colour to define people. “Coloured,” “negro,” “n-word” – these are all references to skin colour. Even “black,” while still used, is falling out of use, in favour of “African-American.” We don’t call Asian people “yellow” (at least, not anymore). We aspire, in those soaring words of MLK, to judging people “not by the color of their skin but by the content of their character.” We should do so in deeds and in words alike.
Words take on meaning, and it is meaning that matters. Arguably, there is nothing inherently offensive about the “n-word.” They are letters on a page. But it has come to be used as a vicious slur. The same is true of “redskin,” or what I should actually refer to as the “r-word.” It is offensive to millions of Native American/First Nation people.
True, other team names refer to peoples: Minnesota Vikings, Notre-Dame Fighting Irish, my beloved Montreal Canadiens... But none of those are a race. None refer to skin colour. And, most importantly, none of those is an ethnic slur. It’s not the Notre Dame Mics or the Montreal Peppers.
There are other team names that refer to Aboriginal people: Blackhawks, Seminoles, Fighting Illini, etc. The issue when it comes to those names is much more subtle. Some are not a reference to race but to a Nation -- Seminoles, Illini – and are similar in that sense to Fighting Irish or Canadiens. In many cases, appropriately, the teams have consulted with and obtained the consent of those Aboriginal Nations to use their name.
We also have the Cleveland Indians, Atlanta Braves, Golden State Warriors, and the aforementioned Kansas City Chiefs. Some Aboriginal people are not offended by those names, because unlike the “r-word” they are not racial slurs. Others are offended and, in my opinion, they have a point. Those names stem from and perpetuate a stereotype: the brave and/or bloodthirsty, noble savage warrior, dressed in loin cloth and feathers, ready to scalp the enemy. Aboriginal people are not one-dimensional, mythological creatures. They are modern peoples, with proud histories, who occupy all walks of life: factory workers, truckers, doctors, lawyers, teachers, writers. The use of these names as a sports team moniker is dehumanizing. And it spawns behaviour that is profoundly disrespectful: fans appropriating sacred symbols of honour such as eagle feathers and headdresses, and converting them into costumes. The Cleveland Indians logo – “Chief Wahoo” – is perhaps the most racist, stereotyped image of Aboriginal people you could possibly design. We would never tolerate a similar depiction of any other race.
As a sports fan, I understand the resistance to change. I’m a lifelong, passionate Montreal Canadiens fan. If someone told me tomorrow our team name had to change, I’d be pretty upset. And I would want to be convinced that there was a damn good reason. But I’d like to think that the fact the name was a racist slur would be pretty much the best possible reason you could give me.
And although at times it’s easy to forget, it’s just sports, and it’s just a name. Is it really worth disrespecting millions of people across North America, who are already deeply marginalized?
People were upset in Baltimore when they lost the Colts; when they got a football team back, they wanted the name back too. They didn’t. But time, and two Superbowl championships, heal all wounds.
Ultimately, what is at stake is not so-called “political correctness.” It's whether owners, leagues, players and fans believe in upholding certain values that are at the heart of professional and amateur sports: honour and respect.
Thursday, October 10, 2013
I join Steve Lloyd and Jason York on TSN Radio 1200 to chat NFL documentary League of Denials and where things are generally.
Monday, October 7, 2013
Friday, October 4, 2013
By Jacob Zelmanovitz
(Jacob is an attorney specializing in commercial litigation)
As you probably know by now, ARod, or Alexander Emanuael Rodriguez (middle names are fun!), has filed a lawsuit against Major League Baseball and Bud Selig in the Supreme Court of the State of New York. Here’s some questions you may have about that lawsuit, as well as some answers.
Yay, a Supreme Court Case! Wait, that was fast, aren’t there supposed to be appeals and other boring stuff first
This case is in the Supreme Court of the State of New York, but the actual top court in New York is called the Court of Appeals. What is “Supreme” about this Supreme Court it is the top level trial court in the state. Yes, that’s all counterintuitive, but knowledge of this arcana is part of how we lawyers justify ridiculous hourly fees. So if you’re waiting to hear Justice Scalia wax poetically sarcastic about baseball, settle in, you’ve got quite the wait ahead.
Why is he suing now? Why not before the arbitration started?
This is a great question. The lawsuit was filed four days into the appeal to an arbitrator of ARod’s suspension, though it could in theory have been filed quite some time ago. It is possible that the timing is a result of Rodriguez’s team being less than thrilled with how the arbitration has been going. It is also possible that some of the grounds for the suit only came to light immediately before or during the arbitration proceeding.
How can ARod sue now if there’s already an arbitration proceeding?
This is not directly about whether or not Rodriguez used PEDs or was properly suspended, which is what Rodriguez’s appeal to the arbitrator is all about. It’s about whether or not MLB acted improperly in its dealings with ARod and his alleged use of PEDs.
Instead, the complaint lists two similar wrongs that ARod claims MLB and its commissioner have committed: tortious interference with prospective business relationships and tortious interference with existing contracts.
Tortious interference? Ugh, lawyers. Plain English please.
ARod is alleging a witch hunt by MLB. Specifically, Rodriguez is claiming that MLB and Bud Selig interfered with his ability to get sponsorship deals (those are “the prospective business relationships”). While it’s not always legally wrong to convince sponsors to drop an athlete for cheating, the claim here is that the way MLB and its commissioner did so was so improper that it is now liable for the damage it caused (in other words, “tortious”). In his suit, Rodriguez claims that the defendants “willfully and maliciously” leaked details of its investigation against him to the media, knowing and intend for it to cause sponsors to drop him. The fact that the disciplinary process is supposed to make such information confidential renders the leaks a tortious act, and therefore grounds for this lawsuit.
But it’s not just about leaks. Rodriguez also claims that MLB and its commissioner acted improperly in other aspects of its disciplinary process, using dubious lawsuits to gain evidence in discovery, issuing improper subpoenas, and even intimidating and buying off witnesses who might have helped defend him in the disciplinary process.
So ARod claims that the suspension MLB is trying to impose is also a wrongful act, or tortious, in that the suspension was obtained through a malicious and unethical investigation, costing him sponsorship opportunities and his ability to fulfill his contract and play for the Yankees (that’s the “existing contract” he says was tortuously interfered with).
Why couldn’t he sue for something easy to understand, like libel or slander?
Because in a suit for libel and slander, truth is a defense. So long as a defendant was telling the truth, such a lawsuit would ultimately fail. In contrast, the fact that your leaks contained only true information is no defense to a tortious interference claim if you had previously agreed to keep that information confidential.
What happens next?
We wait. It may be months before MLB responds to the suit.
How can MLB respond?
There are basically two responses that baseball can make. One is to file an answer the complaint. Such a document addresses each fact alleged in the complaint in one of three ways, by (i) admitting that the particular alleged fact is true, (ii) denying that particular alleged fact is true, or (iii) stating that the defendants don’t know yet if it’s true or not.
The second, and perhaps more likely response, is a motion to dismiss the lawsuit. Such a motion can be made for any number of reasons, including that under the CBA any dispute between Rodriguez and MLB must be heard by an arbitrator, and not taken to court. That last one would be a shame if successful because arbitration is secret, while anything filed in this lawsuit is a matter of public record.
Click here to read ARod's lawsuit against Major League Baseball. Essentially, he's alleging that MLB engaged in improper conduct that has interfered with his earning potential. I'll have some comments up on this later today.
Wednesday, October 2, 2013
Tuesday, September 24, 2013
Here is a link to my CBS article Helmet-removal rule: What it means today and moving forward.
Does the rule make sense? I discuss why it may.
Does the rule make sense? I discuss why it may.
Monday, August 19, 2013
I got my hands and a copy of the Pistorius indictment. It lays out the charges and the list of the prosecution's witnesses. As you will see, many are from the same apartment complex as Pistorius. This ties to witnesses saying they heard a woman scream, then gunshots then more screams.
There are 107 witnesses on the list. Trial is set for March 3, 2014 - but could be delayed.
To read the indictment, click here.
I join CTV National News to talk Pistorius and what's next for the Olympian.
Click here to watch.
Click here to watch.
Monday, August 5, 2013
I join CTV National News to talk imminent Biogenesis suspensions.
Click here to watch.
Click here to watch.
Thursday, August 1, 2013
Facing a lifetime ban from baseball, which would include the forfeiture of $86 million in salary plus being officially barred from the Hall of Fame, Alex Rodriguez has undoubtedly been spending a lot of time with his lawyers.
In a case like this, Rodriguez and his lawyers would sit down and weigh his options. They would play out different scenarios identifying the pros and cons. Here are his key options:
Option 1: Dig In and Fight
Baseball has reportedly offered Rodriguez a deal: agree to be suspended and forfeit your right to an appeal, and in exchange we will only suspend you for the rest of this season and all of next season. If he agrees to that, if/when he returned in 2015 at the age of 38, he would have 3 years left at $61 million. Not too shabby.
However, if Rodriguez decides not to cut a deal, reports are that Commissioner Bud Selig will suspend him for life. On top of that, baseball will suspend Rodriguez, in part, under the Collective Bargaining Agreement (and not just the Drug Policy).
This distinction matters. If Rodriguez were only suspended under the Drug Policy, he would be able to play during his appeal (which will be heard by Fredric Horowitz). That would mean we could see him back this season playing for the Yankees. However, if MLB suspended Rodriguez under the CBA, he would not be allowed to play while his case is being appealed. Under the CBA, baseball can go this route if a player has engaged in conduct that is detrimental or prejudicial to the “best interests of baseball”, and can include things like breaking federal, state or local laws. This isn’t something baseball exercises lightly; it’s a dramatic option.
There is even the option of baseball invoking Article XI(A)(1)(b) of the Basic Agreement, which provides that Selig can make a ruling if a case involves “the preservation of the integrity of, or the maintenance of public confidence in, the game of baseball”. This is also important. If Selig exercises this option, Rodriguez’s appeal would not go to an independent arbitrator but rather back to Selig. That would all but guaranteed a loss for Rodriguez. However, Selig has advised that he won’t be doing this.
So if Rodriguez decided not to cut a deal, his next step would be to appeal his lifetime ban. That appeal would first go to Mr. Horowitz. We haven’t seen the evidence against Rodriguez. Reports however, are that it is overwhelming and substantial. It may also include things like witness tampering, interfering with the investigation and recruiting athletes to Biogenesis (allegations which Rodriguez has denied). Even with this evidence, baseball may have a difficult time getting Mr. Horowitz to uphold the lifetime ban on appeal.
The lifetime ban punishment is only for the most exceptional of circumstances, and while PED use and possible obstruction of justice charges are very serious, generally more is needed before a player can be denied lifetime employment in baseball. This is particularly the cse for someone who has not been suspended before. Historically in baseball, it’s tough to enforce these types of bans. This isn’t breaking news, and baseball is aware of this.
So Rodriguez if appeals the ban, it may be reduced to somewhere around 150 games – which would be most of next season. But really, that’s just a guess. A lot will turn on the evidence. If it shows an extensive pattern of PED use together with substantial interference with the investigation, it could be more.
If he’s unhappy with whatever ruling the arbitrator’s makes, Rodriguez could head to court. If he did, Rodriguez would attack the credibility of those who provided the evidence, including Biogenesis founder Tony Bosch and former employee Porter Fisher. Bosch has allegedly engaged in criminal activity and would become a significant target of a Rodriguez defence. His legal team would also hope that the pressure of litigation may encourage MLB to settle on more favourable terms. However, that seems unlikely given that baseball is accustomed to litigation and is fully committed to this case.
So if he elects to fight, he first heads to arbitration (while still suspended) and then possibly off to court. Messy and long.
Option 2: Cut A Deal
The evidence against Ryan Braun was overwhelming and substantial. For that reason, he accepted a major suspension even in the absence of a positive drug test (he has the same lawyer as Rodriguez by the way). According to reports, the evidence against Rodriguez is even more overwhelming and even more substantial. There are also reports of a longstanding relationship between Rodriguez and Bosch going back a number of years.
If there is indeed very good evidence against Rodriguez, his lawyers will canvass the benefits of settlement. First, if he agrees to the deal on the table, he could be back in 2015 and still have 3 years/$61 million left on his deal.
As well, by agreeing to MLB’s terms, he will get immediate certainty as far as the length of his suspension. In contrast, if he goes to arbitration, the length may be reduced but may still exceed MLB’s current offer. And if this somehow ends up in Court, this could take multiple years to litigate – and the entire time Rodriguez may not be able to return to baseball. So if he fights, the only certainty is uncertainty.
There is also the matter of legal fees. At $450 million, Rodriguez is the highest paid athlete in major league baseball history. So lawyer fees aren't going to be an issue.
On the flip side, if he takes the deal he will effectively be declaring his guilt. You might remember that he admitted to using PEDs for three-year period beginning in 2001. By agreeing to a suspension now, the public may well conclude that he has used his entire career. Essentially, there would be no recovering his legacy. He will be perceived as the Lance Armstrong of baseball. The problem for Rodriguez is that the legacy ship may have already sailed.
Option 3: Try Something Else.
Cricket looks like fun.
Ultimately, Rodriguez seems cornered. He is looking to pick the best option available to him under the circumstances. Not an enviable position to be in.
Indeed, rock meet hard place.
Steve Lloyd and I interviewed TJ Quinn recently on my radio show Offside. TJ is an investigative reporter with ESPN's Outside The Lines and has done a terrific story breaking a lot of stories in connection with Biogenesis.
Here's a transcript of some of his interesting comments:
MLB Player Reaction to Braun Suspension
My colleagues have reported being overwhelmed at how many guys came up and said they were happy that he got nailed. People were furious. It’s one thing to lie about it. It’s one thing to make a snide accusation that somehow the sample collector was to blame and was out to get him. Players have been saying he made us lie; we defended him and he let us do it. So you have the indignancy of being asked to lie for somebody - and on top of that there has been a real cultural change in our players see this. There is sizable majority that want to see drugs out of the game and want to see cheaters punished.
On Tony Bosch being a doctor
He says he went to medical school in Belize and he has a degree in his office. He is not an MD and certainly has never held a license to practice medicine.
On Porter Fisher’s importance
He is the one that unravelled Biogenesis publicly. We have been working on this since last August. Sometime a few months later, Fisher, who had been a client of Biogenesis and then became an investor and then quickly became an unhappy investor, had it with Tony Bosch. Bosch owed him $3600, Porter asked for it, and Bosch said he wouldn’t pay him. So after that, Fisher went to the Miami New Times with 4 boxes of [Biogensis] documents.
On whether Fisher initially believed Bosch’s activities were legitimate
He says that he believed they were perfectly legitimate. He called himself a doctor, he had a degree on the wall and everyone called him Doctor T. He even had a lab coat – how much more official does it get than that.
He had no reason to doubt him. He also said at the outset he was unaware there was a performance enhancement part to Bosch’s practice. He knew of the weight loss component as he had been a client of Bosch. Then he figured it out after looking at the books.
On whether Fisher tried to blackmail Bosch
He denies that ever happened. When I asked him that question on camera he suggested he would pursued it in any event. He believed that someone had to look at Tony Bosch. Whatever his motivation, one thing that did seem clear was that he wasn’t looking for attention and he wasn’t really looking to do anything about the athletes. He said he didn’t really know who most of the athletes were when he got the documents. He wasn’t much of a sports fan. The only names he recognized were Alex Rodriguez and Melky Cabrera. He took the stuff about to the Miami New Times more concerned about with the names lawyers, judges and local law enforcement thinking they would jump on that. When the Miami New Times reviewed the documents, they figured out quickly how many athletes there were.
There have been a lot of smears against Fisher and a lot of parties interested in discrediting him and saying he wanted money for the documents. Based on everything we have seen, (and we have done a lot of reporting to check him out) he never did. When he went to the Miami New Times they said he never asked for money. He didn’t go to major league baseball and ask for money.
On NBA players being connected to Biogenesis
According to Porter – yes. I don’t know the names of anybody involved. He has indicated that they aren’t major names. He knows about a dozen athletes from outside of major league baseball across 6 sports. So obviously the numbers aren’t overwhelming for any one of those sports. But that also only covers a very short period of time where he had access to documents. He estimates that Bosch worked with over 100 athletes if you go back a few years.
So he may have had a few clients from other sports but it doesn’t sound like he had a major operation in those sports like he did in baseball.
On Rodriguez’s longstanding relationship with Bosch
It goes back years. Bosch had a different relationship with Arod. He got the personal treatment that others did not. He generally used couriers for other athletes like Ryan Braun. But Bosch would go to Arod’s house and inject him there. He once went to his house and was trying to get into a vein. He couldn’t hit the vein and Arod was bleeding all over his house and got furious at Bosch and kicked him out of the house. Bosch was worried he was done and was going to fire him. For years it was more than just casual contact.
On Rodriguez declaring he wants to be a role model
There seems to be a disconnect between what he thinks he can do to restore his image and where his image really is. Unless he can show a massive conspiracy by Tony Bosch to get him, he’s cooked. Baseball had an expectation (on the evidence) and Bosch exceeded it.
Wednesday, July 31, 2013
Tuesday, July 30, 2013
Click here to read my article at TSN. entitled Legal Look: Braun, Rodriguez, PEDs And Terminating Contracts.
I cover whether a player can have his contract terminated because he did PEDs. Short of strangling your employer (see end of article), it's tough to have your contract terminated.
Wednesday, July 24, 2013
Tuesday, July 23, 2013
Wednesday, July 10, 2013
Last night on Offside, we interviewed T.J. from ESPN's Outside The Lines (the investigative unit for ESPN).
A few minutes before the interview, Quinn broke the story that MLB was going to suspend upwards of 20 players for PEDs use. That includes players like Ryan Braun and Alex Rodriguez. We had a good talk with Quinn about a story that is shaping up to be the big ones of 2013.
Tuesday, July 9, 2013
Wednesday, June 5, 2013
I join Matt Cauz and Company on TSN Toronto radio to chat Biogenesis.
Click here to listen (starts at 22 minutes or so).
Click here to listen (starts at 22 minutes or so).
Tuesday, May 14, 2013
Bill Daly Interview: The Lockout, NFL Concussion Lawsuits, Homosexuality, Olympics, World Cup, Social Media & Personal Questions
Recently I had the opportunity to interview Deputy Commissioner and Chief Legal Officer of the NHL Bill Daly.
We discussed a lot of the key issues facing the league, including the lockout, NFL concussion lawsuits, homosexuality, Olympics, World Cup and social media. He also answered some personal questions.
I've gone ahead and transcribed the interview and it can be found at CBSSports.com.
I joined CTV National News and broke down the key elements of the Boogaard lawsuit against the NHL.
Monday, May 13, 2013
Thursday, May 9, 2013
Bill Daly joined me on my radio show Offside for a lengthy and in-depth interview.
We covered the lockout, homosexuality in sports, Olympic participation, a possible World Cup revival, the impact of the NFL Concussion lawsuits on the game of hockey, social media and his Canadian roots.
That's right - Canadian roots. He also used to vacation in the Maritimes.
Friday, May 3, 2013
Ottawa Senators forward Eric Gryba hit Montreal Canadiens forward Lars Eller during second period action in Game 1 Thursday night in Montreal. Eller was knocked unconscious before he hit the ice. With his arms limb and unable to brace for impact, Eller’s face collided with the ice (sadly reminiscent of Kevin Stevens).
The result for Eller was a pool of blood gathering on the ice around his head, a broken nose, broken teeth and a concussion. Eller was taken off the ice on a stretcher and Gryba was given a major penalty for the hit and a game misconduct.
The Canadiens have lost one of their top players. For Canadiens fans it’s a shame, as Eller has emerged this season as a strong two-way player.
Gryba now faces a discipline hearing with the league to determine whether he will be suspended.
So now we are faced with the inevitable question: to suspend or not to suspend?
Well we need to look at the rules, the NHL CBA and of course the hit.
So first the rules. We’ve all heard about Rule 48 or the primary contact to the head rule. Here it is:
48.1 Illegal Check to the Head – A hit resulting in contact with an opponent's head where the head is targeted and the principal point of contact is not permitted. However, in determining whether such a hit should have been permitted, the circumstances of the hit, including whether the opponent put himself in a vulnerable position immediately prior to or simultaneously with the hit or the head contact on an otherwise legal body check was avoidable, can be considered.
Another important consideration is the NHL CBA. It sets out the factors relied upon when determining whether to impose supplemental discipline. Here's the language from the CBA:
In deciding on supplementary discipline, the following factors will be taken into account as per paragraph 6 of Schedule 8 (this is the old CBA but it shouldn’t change):
(a) The type of conduct involved: conduct outside of NHL rules; excessive force in contact otherwise permitted by NHL rules; and careless or accidental conduct. Players are responsible for the consequences of their actions.
(b) Injury to the opposing Player(s) involved in the incident.
(c) The status of the offender, and specifically whether he is a "first" or "repeat" offender. Players who repeatedly violate NHL rules will be more severely punished for each new violation.
(d) The situation of the game in which the incident occurred: late in the game,lopsided score, prior events in the game.
(e) Such other factors as may be appropriate in the circumstances.
Of there factors, Paragraph 6(a) is key. It provides for discipline in cases of illegal hits or legal hits delivered with excessive force.
Now on to the hit. I've slowed the video down and captured these images, which are helpful in analyzing what happened:
From these images, Gryba does not make primary contact with the head. His hips and torso drive into Eller. The elbow is not up, nor is the shoulder delivered to the head. Contact is made with Eller’s body initially and that contact is away from the head.
So how is Eller rendered unconscious before he hits the ice? As a result of the initial impact, Eller’s head hits Gryba in the back of the shoulder knocking him out.
These images are quite helpful in getting a better idea of the manner in which the hit was delivered and received.
So without that primary contact to the head, the application of Rule 48 is off the table.
However, what about Paragraph 6(a) of the CBA, which provides for discipline in cases of hits that fall within the rules but are delivered with “excessive force”.
While the result of the hit was disheartening, the hit itself did not seem one that could be fairly characterized as “excessive”. Gryba lined up Eller (who had his head down), and a strong impactful hit was delivered. This was not a case of Gryba going after a defenseless Eller. It was, unfortunately for Eller and the Canadiens, a hit that not only falls within the rules but was also not excessive.
Problem is the laws of physics conspired to produce the result we saw.
It’s close but there is insufficient evidence to conclude that the hit was worthy of a suspension.
It was a legal hit with a terrible result. Still legal, though.
It was a legal hit with a terrible result. Still legal, though.
By the way, I’m a Habs fan.
Monday, April 29, 2013
I join Sandie Renaldo of CTV National News to discuss Brian Burke's lawsuit.
Click here to watch.
Click here to watch.
Friday, April 26, 2013
Thursday, April 25, 2013
I joined CTV National News today to discuss the U.S. Government's lawsuit against Lance Armstrong. They have alleged, in part, breach of contract and fraud, and are seeking in excess of $100 million.
Lance's defensive team called the action "opportunistic and insincere".
Pot meet kettle.
Friday, April 19, 2013
I joined Dave and Simmer at the Team 1200 to talk the perils of a 24 hour news cycle. We also talk about Adam Scott's sponsorship potential.
Friday, March 15, 2013
As a born again in the 1990s, Stu also speaks to reconciling his faith with punching people in the face.
Stu is very articulate. A wordsmith. That made for a compelling interview.
Click here to listen.
Thursday, March 14, 2013
by Fraser Blair - @fmblair
What the New York Islanders decide to do with Tim Thomas after this season might provoke a legal challenge under the new CBA. Circumvention anyone?
As we explored in Part 1 of this series, Thomas has been suspended without pay for failing to report to the team. By rule, the $5 million cap hit on Thomas’ contract counts towards the calculation of the Islanders compliance with the Lower Level. Technically, the cap hit does not count towards the team’s Upper Limit.
If Thomas stays home for the entire season the Islanders will have the right to ‘slide’ the remaining year on the contract to 2013. If he refuses to report next season, he will once again be suspended and the Islanders’ Lower Level will be credited with $5 million.
In a vacuum, there is nothing wrong with this conduct. Extending the contract of a player who was suspended for failing to report is neither new nor offensive in and of itself. However, the precedent set by the Kovalchuk case tells us that circumvention matters aren’t analyzed outside of their full context.
The anti-circumvention rules of the CBA are contained in Article 26. Article 26.3(a) describes the elements of a circumvention offence. It reads:
“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 or has the effect of defeating or Circumventing the provisions of this Agreement or the intention of the parties as reflected by this Agreement...”
This was the provision at issue in the Kovalchuk case. In that case, arbitrator Richard Bloch determined that the 17-year $104 million back-diving contract between Ilya Kovalchuk and the New Jersey Devils amounted to cap circumvention. Eric has a nice summary of the decision on this site.
Bloch’s decision contains a high level analysis of the purpose of the Upper Limit of the salary range system. He concludes that the purpose is to promote ‘competitive balance’ amongst NHL clubs by ensuring a degree of payroll parity within the league.
Circumvention, then, can arise due to conduct that defeats the principle of competitive balance. Following this reasoning, Bloch concluded that Article 26 is wide enough to capture conduct that is not explicitly prohibited by the CBA but nevertheless offends competitive balance. As a result, Article 26 necessitates for a deep contextual inquiry into all the relevant factors surrounding the transaction.
This reasoning trumped the NHLPA’s argument. The union had argued that none of the terms of Kovalchuk’s contract actually broke any explicit rules in the CBA and that by extension, the CBA and the salary range system were not circumvented. However, since Bloch determined that a contextual approach was the most appropriate method for analysis for Article 26 issues, the context of the transaction became the determinative issue in the case.
The relevant contextual factors were the combination of a substantial drop in salary over the last 6 years of the contract, the fact that only one NHL player has played past his 43rd birthday (the contract would have paid Kovalchuk until he was 44) and the switch from a ‘no-move’ clause to a ‘no-trade’ clause. Together, this proved that it was “reasonably unlikely” that Kovalchuk would or was intended to fulfill the full extent of his contract.
Note how the standard of proof was reasonableness. The evidence doesn’t have to be unequivocal. In other words, the evidence must form an intelligent and logical basis for the facts its trying to prove.
In sum, the Kovalchuk decision determined that a wide range of conduct may be caught by Article 26. Regardless of intent, Article 26 prevents otherwise permissible transactions that, when examined in their full context, have the effect of offending competitive balance.
Using the template provided by the Kovalchuk decision, would the Islanders violate Article 26 were they to extend his contract with the knowledge that he will not play next season?
To make a persuasive argument, the NHLPA would first have to establish that the purpose of the Lower Level is the same as the Upper Limit: to ensure competitive balance within the league. This would not be a difficult hurdle to clear as the Upper and Lower Levels create a fixed player salary range within which every team must operate. In other words, they promote salary parity together.
The more difficult aspect of the union’s case would be its ability to prove that the Islanders extended Thomas’ contract despite knowing that it was “reasonably unlikely” that he would play in 2013-2014. As was the case with Kovalchuk, none of the conduct that would be undertaken by the Islanders would violate a specific provision of the CBA. As a result, the NHLPA would have to show that the sliding of Thomas’ contract constitutes circumvention in the specific context.
The NHLPA would likely discharge this burden if Thomas is publicly adamant about his intention to not play next season or simply tells the Islanders that he will not report to the Club. However, the NHL would point to Thomas’ has public statements of his intent to compete for the United States at the 2014 Olympics as evidence that it was reasonable for the Islanders to believe that he intended to fulfill the remaining year of his contract.
It will be interesting to monitor how Thomas’ age (39) factors into the arguments. The NHLPA would argue that his advanced age adds to the unlikelihood of him playing in the NHL. However, the NHL could argue that his age doesn’t help the NHLPA given the number of goaltenders of his age or older who have recently played in the NHL. I’m not sure how this factor would be interpreted, but it is clear that the relevance of age would be more contentious that it was in the Kovalchuk case.
Another contextual factor might be the upcoming changes to the calculation of a team’s compliance with the Lower Level. As we explored recently, the new rules will prevent performance bonuses from counting towards the Lower Level. We also showed that the Islanders will be seriously impacted next season by this change.
Might the NHLPA argue that the acquisition of Thomas is an attempt by the Islanders to mitigate the changes to the Lower Level that take effect next season? It’s a circumstantial but plausible argument and Article 26 allows the consideration of circumstantial evidence. It’s clear that Thomas’ $5 million cap hit would significantly help the Islanders reach the floor without actually having to spend the money.
In any event, the Islanders are definitely a team to monitor over the next few months. The new CBA appears to close some of the loopholes he has exploited. I’m looking forward to how he will react to the new rules.
Saturday, March 9, 2013
Marc Staal getting hit in the eye with a puck has once again sparked a discussion as to whether NHL players should wear visors.
The starting point for this discussion is whether the NHL can force players to wear visors.
Visit TSN's website here for my answer.
Monday, March 4, 2013
I wrote an article for CBS entitled Canadiens GM Marc Bergevin Making Strides On Ice And Balance Sheet. Bergevin has cleared significant cap space with some shrewd moves, while not compromising the quality of the team.
Sunday, March 3, 2013
By Rory Johnston (@RnfJohnston)
When the Colorado Avalanche found out yesterday afternoon that RFA centre Ryan O’Reilly had signed an offer sheet with the Calgary Flames, they had 7 days to make a decision on whether to match the Flames’ offer. Instead, it took them only a few hours to decide they wanted to keep him.
Colorado has now secured O’Reilly’s services for the next two years, albeit at a salary that’s a fair bit higher than what they would have preferred. Another downside - they’ve gone without him for the first 19 games of the season and are sitting outside of a playoff spot.
The Flames’ offer came with a twist: the structure of the offer was carefully designed to make it less attractive for the Avalanche to match. It’s only a two-year deal, set up so that O’Reilly will make $6.5 million in 2013-14, and only $3.5 million this year ($2.5 million of which comes as a signing bonus). By jacking up the salary in year two, O’Reilly will be guaranteed a rich payday if the Avalanche want to retain him.
The structure of the Flames’ offer was meant to be a ‘Poison Pill’. The high second-year salary of $6.5 million will set the bar for future negotiations and salary arbitration such that O’Reilly may never be cheap again. That means that the Avs first year offer must be $6.5 million – subject to possible conditions.
So the Flames purposely torpedoed any long-term savings on the contract in an effort to make it a less attractive option for the Avalanche to match.
‘Poison Pill’ is a term I’m borrowing from NBA offer sheets, which use a different salary cap trick to make it hard to match offer sheets, but the concept is the same: it’s a contract term that could hurt whichever team signs the player, with the goal of keeping a team from matching an offer.
Some have noted that the higher salary in year two means that the qualifying offer necessary to keep O'Reilly will be a steep $6.5 million for 2014-15. Quite possible - but not the only option.
At the end of the 2013-14 season, O’Reilly will be a restricted free agent once again, and instead of tendering a qualifying offer, the Avalanche could file for ‘cut-down’ arbitration in the hopes that they can retain O'Reilly at a lower price than his $6.5 million 2013-14 salary. 'Cut-down' arbitration is a rarely-used CBA provision that allows teams to file for arbitration with the hopes of giving their player a pay cut of up to 15%.
In 2012, the Vancouver Canucks filed for cut-down arbitration for Mason Raymond – and he settled with the team, agreeing to take a 14% pay cut after injuries had slowed down his performance.
In O’Reilly’s case, the 15% pay cut would be measured against his $6.5 million 2013-14 salary. So the lowest possible salary he could get at arbitration would be $5.525 million. Though it might be counter-intuitive to give a pay cut to a player on the rise, NHL salary arbitrators may look at other RFA-eligible players at similar age and experience levels and conclude that few players at O’Reilly’s age make as much money.
There are no guarantees, though. Since the Mason Raymond case was settled before going to arbitration, O'Reilly would be a real test case for cut-down arbitration. It’s tough to know how that would unfold (if we get there). While there may be reasonable arguments justifying a drop from the qualifying offer, if O’Reilly has a reasonably good season in year two of his deal, it will probably be tough to get an arbitrator to cut his salary. Honoring the intent of the qualifying is the starting point and there will need to be good reason to move off that.
Why did the Avalanche match so quickly? Avs GM Greg Sherman had presumably given a lot of thought to this ahead of time, including making a decision on how high an offer he would match. Sherman was Colorado’s Assistant GM before graduating to the big job in 2009. In his previous role, he was the team’s lead contracts man, handling contract negotiations, a bit like the old role occupied by Leafs GM Dave Nonis. Sherman, no doubt, had the various possibilities (including, possibly, the option for cut-down arbitration) in mind well in advance before the offer sheet dropped.
These guys are generally prepared – we just don’t hear about it.