Tuesday, July 27, 2010

Arbitrator's Powers in the Kovalchuk Case: Making the LA Kings & Isles Appear?

The arbitrator in the Kovalchuk case, whenever he or she is appointed (could in theory be up to 120 days from now), will have wide discretionary powers in handling the case and making a ruling.

Under Section 26.13(b) of the CBA, the arbitrator has the authority to force “the attendance of witnesses and the production of documents”.

This means that the arbitrator can require the production of things like emails, faxes and telephone records.

On top of that, as per Section 48.5(d), the arbitrator may find that a circumvention has occurred “based on direct or circumstantial evidence”. Circumstantial evidence casts a pretty wide net. It's evidence that calls on the arbitrator to make a deduction to conclude that a fact exists, such as the parties intended to circumvent the CBA by adding a bunch of throwaway years at the end of the contract. In contrast, direct evidence supports the truth of an assertion directly.

The arbitrator could therefore require the Los Angeles Kings to appear and produce documents since they were involved in contract negotiations with Kovalchuk and may have something relevant to contribute. If it’s indeed accurate that the New York Islanders were involved in the Kovalchuk sweepstakes, they could also be called or asked to produce relevant documents.

In case you’re wondering, it’s not open to the arbitrator to call LeBron James as a witness and demand that he explain why he chose the phrase “I'm going to take my talents to South Beach” rather than just say, "I'm going to the Heat". I wouldn't mind the explanation though.


Anonymous said...

Docket Rocket - The NHL should take advantage of this and televise arbitration with one hour special "The Arbitration". I'm taking my talents to arbitration.

Daniel Gilbeau said...

I am very disappointed to hear that the arbitrator can force the Kings and Islanders to testify against Kovalchuk but he does not have the power to get answers out of LeBron James. Can he force Brett Favre to appear and force him to make a decision now whether or not he will be retiring?

Eric Macramalla said...

Haha Dan - it would be interesting if the arbitrator called Favre's ankle as a witness. On the powers of the arbitrator, the KIngs would not necessarily be providing evidence against Kovalchuk. They may have evidence that could help him (though to know of course). Bottom line is that they may have some relevant communications or information that show one way or another the intent of the parties.