Tuesday, January 31, 2012

Radio Clip - Team 1200: Tim Thomas/Jack Todd

Steve Lloyd and I chat about Jack Todd's slightly unfortunate article on Tim Thomas. Here's the clip.

Thomas must be wishing he had just gone to the White House rather than taking a stand (or a seat).

Thomas is probably figuring out that how you take a stand is as important as what you take a stand for.

Please Leave: Super Bowl Hotel Making Guests Sign Affidavit

One Indianapolis hotel is doing what it can to ensure that guests leave before a whole bunch of people descend on the city for the Super Bowl. 

There is a 4 night minimum for the press (and perhaps others) booking for the Super Bowl. One Indy hotel (and I suspect they are not alone) want guests to confirm they will leave by Thursday February 2 when the 4 day minimum kicks in. 

How are they seeking that confirmation? By way of affidavit. Here's what the hotel is asking for specifically:
Because this reservation involves the night before our four-night minimum stay for Super Bowl XLVI, you will be asked to sign an affidavit upon check-in verifying your departure date and you will then be required to check out and leave the guest room  by 12:00 noon on Thursday Feb. 2. 
Never seen that before. Love it.

A Legal Glimpse: Jack Todd, Tim Thomas & Defamation

I was having dinner Sunday night at a near-dining establishment when I got an email steering me to Montreal Gazette columnist Jack Todd’s article on Tim Thomas. When I read it, I muttered to myself (and the bus boy) “Oh that’s not good”.

What Todd Wrote

Todd wasn’t happy with Thomas skipping the White House visit (I wasn’t either by the way). Here’s part of what Todd wrote: 
Look, if this cretin wants to stand outside the White House and spew his drivel, that’s free speech. But standing up the president? All that does is show that Thomas has the class of a swamp-rat. What’s worse, you know Thomas would not have done this with the liberal Democrat Bill Clinton in the White House. Truth is, he felt free to dis Barack Obama, because Obama is black.
The last sentence is what caught my attention that Sunday night while I was polishing off a salty piece of chicken. And of course, it caught everyone else’s attention – including the Montreal Gazette.

That was quite the statement – “Truth is, he felt free to dis Barack Obama, because Obama is black.”

Sometime after the article was posted online, the Gazette edited the article by deleting that last line. The Gazette then prefaced the article with the following apology:
“The Gazette apologizes for previously posting an unedited version of this column.”

So from a legal standpoint, the question is whether this statement could give rise to a claim for defamation: “Truth is, he felt free to dis Barack Obama, because Obama is black”.

What is defamation? A defamatory statement is one that is likely to lower the reputation of a person in the eyes of reasonable people.

The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called “damages”) for harming your reputation.

Side note – we often hear the words libel and slander thrown around. Slander refers to the spoken word, while libel refers to comments in fixed form – like print.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).

So you ask yourself this: is it an honest opinion based on fact or one based on malice.

Were the Comments Fair?

Thomas said he took a stand by taking a seat because he believed “the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People”.

There was nothing there to suggest that his position was racially motivated. As well, generally speaking there is nothing that I am aware of that would suggest that Thomas made his decision based on race. Last time I checked, he wasn't friends with David Duke.

To suggest that someone is racist is a profoundly dramatic and potentially damaging statement that could have very serious repercussions on a person’s personal and professional life. To suggest the same thing without any firm confirmation is going too far.

Thomas deciding to use an employer driven event to make his personal political beliefs known was, to say the least, ill-conceived. When given a chance to explain himself, he didn’t really say much did he? Nothing on healthcare, jobs or foreign policy. Nothing thoughtful, interesting or insightful. He just took a seat after making some very general, vague, and frankly, vacant comments.

Nevertheless, to suggest that he is a racist without a reasonable basis to do so is difficult to justify.

For that reason, the Gazette edited Todd’s article. For that reason, Thomas may have considered, even if for a moment, whether he wanted to call his lawyer. And for that reason, it's reasonable to conclude that Thomas has an arguable case.

Friday, January 27, 2012

Radio Clip - Team 1260: The Role of Squash in Law, Scott Gomez, Subban & Tim Thomas

Here's a link to my conversation with the boys at the Team 1260. Spirited as usual. They insulted me 48 times.

Can NHL Contracts be Renegotiated Before Their End Date?

While filling in as a guest co-host on TGOR this morning, we talked about whether the Ottawa Senators could renegotiate the last year of Daniel Alfredsson's contract. 

The Ottawa Senators captain has one more year that will pay him $1 million. His cap hit remains $4,875,000 (the average yearly value of his 5 year/$24,084,754 deal). The topic of renegotiating the last year of his deal came up when the host of the big show, JR, wanted to increase Alfredsson's pay in the last year of his deal given the captain's iconic status in the city of Ottawa. In part, the logic was that the cap hit was already upwards of $4 million so why not pay him the same. It's the right thing to do, he said. Fair statement.

Unfortunately, Article 11.10 of the NHL CBA does not allow for the renegotiation of contracts:
11.10 No Renegotiation. In no event shall a Club and a Player negotiate a change in any terms of a Player SPC for the then-current season or for any remaining season of an SPC. This provision shall not prohibit a Player and Club from negotiating an extension to an existing SPC in accordance with the terms of Section 50.5(f) hereof or from negotiating a new or reformed SPC or Offer Sheet in the limited context and time-frame expressly set forth in Section 11.6(a)(vi) above.
The language is pretty clear - in no event shall a contract be renegotiated. Players can, however, negotiate an extension to a deal while under contract.

As well, teams can't do indirectly what they can't do directly. That means that the Senators can't buy Alfredsson dinner every night, pay for his haircuts and starch his shirts to make up for the fact that he is only being paid $1 million. That would be a circumvention of the CBA.

Also don't forget: a team could intentionally pay a player a lot less in the last year of a contract to enjoy a lower cap hit and then come that last year pay that player more. Problem is the cap hit in the other years of the contract can't be readjusted so that team would ultimately enjoy a net gain on the cap hit.

Players are stuck with the deals they sign - as are teams.

CBA aside, while Alfredsson is certainly the most beloved athlete in Ottawa by a country mile, his 5 year deal was front loaded at $7 million for the first two years. As well, he's made about $50 million playing for the Senators. While he has taken some home town discounts, that's still some pretty good money. He was free to contract with any party and chose Ottawa.

As well, when parties enter into contracts, both sides bear risk. That's how contracts work. The Senators didn't ask Alfredsson to pay back part of the $4.5 million he was paid last year after a tough season (31 points in 54 games).

In any event, I don't think Alfredsson would ask for more money. He's doing just fine.

As always, though, these discussions raise interesting legal questions.

Enjoy your All-Star weekend.

Thursday, January 26, 2012

Some Overhead Pics of All-Star Game Festivities

Here are some pics of the festivities. City Hall just built a new outdoor hockey rink and that's on the far right in the first pic. Heading left, you will see Confederation Park, which is where there's NHL ice sculptures (saw them last night and they were pretty impressive) and the new Ottawa Convention Centre, where the Fan Fair is held. Slicing through the back is the famous Rideau Canal, the longest hockey rink in the galaxy:

Tuesday, January 24, 2012

Tim Thomas Takes A Stand And Sits One Out - Eric & Graydon Sound Off (And Disagree)

Bruins goaltender Tim Thomas released the following statement Monday evening regarding his absence from the Bruins' visit to the White House this afternoon:

"I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People. 

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government. 

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL. 

This is the only public statement I will be making on this topic. TT"


Eric Macramalla and Graydon Ebert sound off on Tim Thomas:

Eric Macramalla Says

Tim Thomas has said that not going to the White House “was not about politics or a party”, but in the same breath criticized the Federal government.

Of course this is about “politics” and of course this is about a party – or two. That’s not a tough one.

That aside, was Thomas’ decision appropriate?

No. You don’t use an employer driven event to make your own personal political beliefs known. Thomas is an employee of the Bruins and paid handsomely to boot. Thomas must respect his employer and should not bring politics into the mix in connection with a team event celebrating a team accomplishment. It’s distracting, unnecessary and ill-conceived.

There is a legitimate business purpose behind ensuring that players don’t do this kind of stuff. Fans and sponsors can be turned off by such a move. That’s why the NBA suspended Nuggets Guard Mahmoud Abdul-Rauf for not standing during the national anthem on religious grounds.

There is nothing wrong with an athlete making his views known. Frankly, I encourage it (I may not agree with what you have to say but I will defend your right to say it). However, do so on your own time – and not on your employer’s time.

It’s important for players to show a basic level of respect and courtesy to their employer. That was missing here.

Thomas ended his press release by saying that this “is the only public statement I will be making”. Ultimately, he didn’t really say much did he? Nothing on healthcare, jobs or foreign policy. Nothing thoughtful, interesting or insightful. He just took a seat after making some very general, vague, and frankly, vacant comments.

So all we are left with is, in all likelihood, unhappy Bruins ownership, somewhat disappointed teammates and fans, and a flimsy press release – and of course a pretty good reputation that has taken a hit.

Graydon Ebert Says

Tim Thomas is definitely wrong that he's not being political but I don't have a problem with him choosing to boycott the visit (As a side note, I don't support Thomas' views - I just support his decision to do what he did).

I agree that it is supposed to be a team recognition, going to the White House to celebrate the Cup but its not really a public celebration, these visits go on all the time and are merely a footnote in the news cycle. He took something that would have just passed by unnoticed and used it to express his beliefs and frankly theres little downside in my opinion. Yes, his teammates might be a little annoyed and may have to answer some questions for a while but that won't last long term. The Bruins owners may not be that happy that he used the visit to make a political point but its not like they will actually lose any business as a result and it is very unlikely they'll be tied to his beliefs.
In a way I would compare it to when Mahmoud Abdul-Rauf of the NBA refused to stand for the national anthem or when Carlos Delgado refused to take the field in New York for God Bless America as a protest against the war with Iraq. They took a personal political stand in a way that didn't affect the way they did their job. Their teammates and ownership might not have been happy in how they voiced their opinion but there was no long-term blowback. 

Frankly, this is how you protest if you want to do it successfully. Had he merely made a statement or took part in a rally or whatever, his voice would have easily been ignored, but by not making this visit, he certainly made his views known, but in a setting that is really not very serious or damaging to anyone. I think it was kinda smart, even though it is a total political statement that makes him sound like Ron Paul or a Tea Party member.

Friday, January 20, 2012

The NHL CBA & Player Contracts: What Should the Canadiens Do With The Scott Gomez Contract

Scott Gomez only scored 7 goals last season, or $1.14 million per goal. He admitted he didn't have a great season, although that’s like saying that Herman Cain had a so-so campaign.

This season it’s a bit worse. Gomez and I are tied with the same number of goals at 0. He’s played 16 games this season and has 5 assists. He’s making $7.5 million. I was paid 28 pesos for this column. Hardly seems fair.

Will Gomez be playing for the Montreal Canadiens next season. That seems unlikely, and it probably won’t be his choice. Or should I say – he shouldn’t be playing for the Canadiens next season. What will actually happen is a different situation.

Let’s look at his contract. He has 2 years left on his deal that will pay him $5.5 million and $4.5 million. The cap hit, which is key, will remain $7.357 million – what it’s been all along. Remember the cap hit is the average yearly value of a contract and not what a player makes that year.

The fact that Gomez will be paid less than his salary cap hit is somewhat good news. A team that needs to get to the salary cap floor and needs to artificially push its payroll up, could find Gomez attractive as they would be paying him less than his cap hit. That means they would have a net gain on his salary. 

The second option (in order of preference) is for the Canadiens to bury Gomez and his contract in the minors. If he is sent to the minors, his salary would not count against the cap (cue Wade Redden and the Rangers). The Canadiens would of course still be paying him. This assumes that the NHL’s new CBA won’t close this loophole. From a legal standpoint, it seems unlikely that they will grandfather in a new restriction like that. Closing the loophole may just apply to future contracts.

The final option is to buy Gomez out, which would be a mistake if the Canadiens are looking to free up very valuable cap space. The reason: when you buy a player out, the buyout, while less than the player’s yearly salary, will still count against the cap. So if the Canadiens buyout Gomez, the team will still have a cap impact. Here’s the cap hit with a buyout:

2012-13: $3,523,810
2013-14: $4,523,810
2014-15: $1,666,667
2015-16: $1,666,667

The Canadiens have money and burying the Gomez contract is the price of doing business. So if the team can’t trade Gomez to a cap hungry team, then the alternative is to send him to the minors. There is no option 3.

A column on Gomez would not be complete with a note on Rangers defenceman Ryan McDonagh and the trade generally. You might remember that Bob Gainey gave up McDonagh to take on Gomez and his hefty contract. The trade was Gomez, Tom Pyatt and Michael Busto for McDonagh, Pavel Valentenko and Doug Janik. Habs fans still haven't forgotten this terrible trade, where they lost the very promising 6-1, 220 pound McDonagh, who is already showing why he was drafted 12th overall. This season, he has 19 points and is a plus 14. He’s also second on the Rangers with 105 blocked shots.

What does it say that at the time of the trade Habs fans thought it was unforgivable to include McDonagh as part of the package.

In a salary cap world, Gomez should have never been acquired by the Canadiens. Yes he’s a good player. Still, at the time of the transaction, he had 5 years left on a contract with a yearly cap hit of $7.357. That's a lot for a player that has never scored more than 16 goals over the past 5 seasons, and except for 33 goals in 2005-06, never scored more than 19 goals in a season. And don't forget, by taking on that big salary, the Canadiens lost valuable cap space needed to sign other players. If the Canadiens really wanted Gomez, his cap hit was such that the team should have only given up a draft pick and not a top prospect. This is particularly the case given that the Rangers had all kinds of problems unloading Gomez.

Finally, today my pen ran out of ink. I blame Perry Pearn.

A Legal Look at Ryan Braun's Appeal of Positive Drug Test

By Graydon Ebert

Ryan Braun’s appeal of his positive drug test began in front of an arbitration panel on Thursday. Braun’s positive test, which indicated that Braun had elevated levels of testosterone suggesting the presence of synthetic testosterone in his system, was first reported last month. 

Since it became public Braun has vigorously protested his innocence.

The process for appealing a positive test for performance enhancing drugs is found in the collective bargaining agreement and the Joint Drug Prevention and Treatment Program Agreement, which is incorporated by reference into the CBA. Section 9 of the Joint Drug Prevention and Treatment Program Agreement covers appeals of a positive test result. 

In Braun’s case his appeal falls under Section 9B as he is challenging the positive result. Under this section Major League Baseball has the initial burden of proving that the test result was in fact positive and obtained pursuant to a valid test as set out in the Agreement. Braun, if he wishes that the test result be overturned, then must prove that the test result was not due to his fault or negligence. It is not enough for him to deny that he intentionally took a prohibited substance, but he must prove objective evidence in support of his denial, such as evidence questioning the accuracy or reliability of the positive test. This is a difficult burden for Braun to meet.

The rules of procedure for the grievance of a positive test result under the Agreement are found in Article XI of the CBA and in Appendix to the document. The hearing is held in front of a panel of three arbitrators, one from MLB, one from the union, and one independent member, reportedly Shyam Das in this case. Both Braun and MLB may provide any evidence they deem necessary to the determination of the appeal. Both sides are allowed to examine and cross-examine witnesses under oath. The Arbitrator is allowed to impose another other procedures he deems necessary.

Braun faces the penalty of a 50 game suspension for a first time positive test result. The arbitrator has 25 days from the beginning of the arbitration to make a ruling with a written opinion to follow no later than 30 days after the ruling. If Braun’s suspension is upheld he shall begin serving it as soon as the season starts. If the arbitrator rules that no discipline is appropriate, then all aspects of the proceeding will remain confidential.

So does Braun stand a chance of having his suspension overturned? He is certainly facing an upheld battle. No suspension stemming from a positive test result has ever been overturned in the history of MLB’s drug testing program. Braun has the burden of introducing compelling, objective evidence that the positive test result is not because of his fault or negligence. 

Unless there were serious flaws to the testing process that have not as of yet been reported, it seems unlikely that Braun’s appeal will be met with success.

If the suspension is not overturned, Braun will not be eligible to return to the Brewers until the end of May and will lose $1.87 million of his $6 million salary for 2012.

Dipietro's Injury History

Further to my column below on Rick Dipietro's contract, below is a list of some of the injuries he has sustained since he signed a 15 year/$67.5 contract on September 12, 2006.

He's sort of like Samuel L. Jaskson's character from Unbreakable. Thanks to the New York Times for collecting this information:

2006-07 (62 GP)

- Sustained concussion after a collision with Habs forward Steve Begin; missed 7 games as a result
2007-08 (63 GP)
- Off-season surgery for torn labrum in hip
- Missed three games as a result of a left knee sprain suffered during pregame warmups
- Missed last nine games of the season to hip surgery after injury he sustained during the All-Star Game skills competition (guess he was showing off his injury skills, which are unparalleled)
2008-09 (5 GP)
- Off-season left knee surgery
- "After playing one period in first five games, missed 27 games, starting Oct. 27 to knee surgery"
- Missed last 41 games of season with swollen knee
2009-10 (8 GP)
- Off-season knee surgery
- Missed first 27 games of season while recovering from surgery
- Missed last 12 games of season with swelling in right knee
2010-11 (26 GP)
- Placed on injured reserve list on December 21 with swelling in left knee
- Missed five games after suffering groin injury in Calgary game
- Missed 20 games after suffering facial fractures February 2 in his first NHL fight against Pens goalie Brent Johnson
- Missed three games with concussion after being struck in mask with puck in practice (to be clear - it wasn;t a game - it was practice- I'm talkin' 'bout practice not a game)
- Placed on injured reserve December 15 with groin injury 
- Hernia surgery - out indefinitely 

Tuesday, January 17, 2012

Can Islanders Ever Get Out of Dipietro Contract? Answering A Reader's Question

Offside received a good question from Adam, who resides in New York. Here's the question and Offside's response with input from blog contributor Graydon Ebert:

Hi Eric,

I first heard you on XM NHL Home Ice about a year ago and I have been a regular follower of your blog ever since. You look at the stories from a unique, but important perspective that often isn't covered by other media outlets. Keep up the great work!!!

I have a question that I have tried to find an answer to for years now: With Rick DiPietro's ridiculous contract and endless injuries, how does retirement and insurance work? I am assuming that his contract is fully insured, so don't we have enough evidence where he could retire and still be paid by the insurance company? Are there deductibles? Who pays them, the team or the player? Buying DiPietro out is not an option due to the term and dollars on the contract and I think it is safe to say there is no chance of him coming back to play a healthy, successful career. What are the options to get rid of him without having to pay him? Are there options?

With every passing injury, me and every Islanders fan wonder what the options are. Hopefully you can help clear it up!

Keep up the great work with the blog!

Best Regards,

New York, NY

Adam, we can certainly appreciate your frustration. Now 30 years old, DiPietro still has nine years remaining on his 15-year deal worth $67.5-million. The latest injury is a sports hernia that will keep him out until at least April.

If you remove the 2010-2011 season, when he played 26 games, he has played 23 games since 2008, including 8 this year.

As per Article 23.4 in the CBA, a player who is disabled and unable to play because of an injury sustained during employment is entitled to be paid his salary for the remaining fixed term of his contract as long the disability and inability to play continues.

The player can also make a claim under the NHL/NHLPA career ending disability policy but this disentitles him to the salary under this contract.

In DiPietro's case, should it get to the point where he can't play anymore, it is highly unlikely (i.e., no chance) that he would choose the disability policy over getting paid under his contract. Why forsake the money under the contract.

It is likely that the Islanders have his contract insured given its size. The Isles pay the insurance (and not the player since the team is seeking the coverage). They pay DiPietro's salary and then recoup some or all of it from the insurance - depending on how the policy is structured (always look to the contract as a starting point). That means they would pay the premiums and any deductibles.

The Islanders probably don’t have any other options other than to pay him. Speaking to Newsday, Dipietro declared just last week that he had no intention of retiring.

“Nothing like that has even crossed my mind. Knock on wood, the doctors have said this is something you can come back from. Lots of athletes have. I know I still want to play.”

The Islanders can seek some salary cap relief with the long term exemption but as long as he was hurt playing hockey they have to pay him one way or another.

Ultimately, that’s the risk of signing a player to such a massive contract.


Friday, January 13, 2012

Radio Clip - Team 1260: Cammalleri, NHL Realignment & Slapshot

Another fruitful discussion with Nielson and Chase at the Team 1260. With each passing segment we become closer. And by closer, I mean more distant. 

Here's the clip.

Pierre Gauthier, Ralph Nader and Michael Cammalleri

Kinda nuts how Pierre Gauthier and Ralph Nader look alike. See for yourself:

I can't see the difference - can you see the difference (cue Whisk commercial).

Nader aside, I really hope Gauthier has a plan after having disposed of Cammalleri. Yes - the move makes cap sense and the Habs get someone that can score in the dirty areas. Most of the Habs goal scorers are perimeter players and spend more time on the outside than Ron Paul.

However, Gauthier hasn't exactly excelled this season or at the very least inspired confidence. First he fired assistant coach Perry Pearne after he was unable to pin his team's loses on the popcorn girl. That didn't work out so well. After that, he fired head coach Jacques Martin. That hasn't worked out so well either. Oh yes - he signed Andrei Markov to a 3 year deal at $5.75 a year. A very talented D Man, sadly Markov has had more surgeries than Joan Rivers. Most recently he went in for a tummy tuck and brow lift and will be out indefinitely.

In a salary cap world, it can be very tough to retool. Great players are generally not made available and teams need to be shrewd and build through the draft. So that makes it imperative that management makes smart moves and doesn't waste cap space or players and/or assets.

Sometimes I just get the feeling that Gauthier has been reactionary and desperate at times this season, and doesn't have a long-term plan. Maybe I'm wrong - and if I am I would like him to let us know what the plan is over the next few seasons.

Two more things:

1) Pulling Cammalleri midway through the game makes it kinda feel personal doesn't it.

2) Gauthier likes to refer to everyone and everything as "Mr." - Mr. Cammmalleri, Mr. Bourque, Mr. Gionta, Mr. Chair, Mr. Pants, Mr. Wife, Mr. Car, Mr. Ice Cream. It's endearing - really. Maybe, though, Mr. Gauthier may want to tweak his Mr. Approach.

I really hope Habs aren't turning into hockey's version of the Corvair.

Wednesday, January 11, 2012

Legal Basis For NHLPA's Rejection of Realignment & Why Not Declaration of War

The NHLPA has rejected the NHL's proposed realignment. The NHL was looking to move from six divisions to four conferences.

The NHLPA has said that it did not consent to the realignment as it was concerned that it could lead to more onerous travel for its members. Donald Fehr and company were also concerned about the disparity in chances of making the playoffs between the smaller and larger divisions.

Here's an excerpt from the NHLPA's press release on the matter:

"The travel estimation data we received from the League indicates that many of the current Pacific and Central teams, that have demanding travel schedules under the current format, could see their travel become even more difficult. On the playoff qualification matter, we suggested discussing ways to eliminate the inherent differences in the proposed realignment, but the League was not willing to do so."

NHL Deputy Commissioner Bill Daly wasn't too pleased. Here's some of what he said:

“The travel issue is not really an issue at all. We put them in touch with (NHL VP/Scheduling, Research & Operations) Steve Hatze-Petros, who believes, given the new matrix, he can actually make travel more efficient...There's always going to be inequities in a playoff format.”

Daly added: “There’s no system that’s perfect. My concern is that those stated concerns were really just pretext for denying consent because the players’ association felt this was an issue that should be addressed in the broader collective bargaining negotiations that are about to take place".

Legal Basis to Reject Realignment

Article 30.4 of CBA provides as follows:

The NHL...shall not, during the term of this Agreement...amend or modify the provisions ...of the League Rules or any of the League's Playing Rules in existence on the date of this Agreement which affect terms or conditions of employment of any Player, without the prior written consent of the NHLPA which shall not be unreasonably withheld.
Since realignment affects the "conditions of employment" for players, the NHL had to get the NHLPA to sign off on realignment.

The same provision of the CBA says that the Union can't unreasonably withhold its consent. The NHL contends that the NHLPA did just that and accordingly is in breach of the CBA.

On the flip side, the basis for the NHLPA's rejection is that it wanted more information from the NHL as to how realignment would affect travel and the playoffs. The NHLPA wanted to make a reasoned decision as to whether the proposed realignment was good for its players, and given what it saw as insufficient information on the impact of the proposed plan, decided to withhold its consent. 

Unreasonably withholding consent is going to be an objective test or analysis. The question is whether, based upon the information, was it reasonable for the NHLPA to act as it did? The decision does not need to be right - just reasonable.

The decision to reject the new format was certainly a significant inconvenience for the NHL. However, based upon the available information, I'm not ready to say that the Union acted unreasonably.

This Shouldn't Be A Surprise

There have been many people attacking the NHLPA for its rejecting the new plan.

How does this come as a surprise?

On the eve of CBA negotiations, it wouldn't be a particularly smart move for the NHLPA to consent to realignment. By doing so, it would forfeit leverage. The NHLPA has to try and secure as much leverage as it can for the CBA talks, and this is one way. Does this represent significant leverage? No. However, it's something.
This was not, however, a declaration of war by the NHLPA. It was simply taking a thoughtful and prudent approach to the issue of realignment, while keeping its eye on the upcoming CBA negotiations.

So yes - CBA negotiations have already started (before getting started). And yes - there are serious issues to hammer out including the players' current 57% share of revenue (inflated when compared to MLB at 47%, NFL at about 48% and NBA at about 50%). There is also the salary floor to deal with.

Still, this doesn't mean we are headed for a lockout. The NHL is enjoying unprecedented growth and it just signed a big television deal (relatively speaking - NFL TV revenue for 2014 will be $7 billion vs. $200 million for NHL). It understands that a labor disruption could put the brakes on its forward momentum and could irreparably harm the game.

Frankly, if the Union is looking for leverage it's just that - the success and growth the NHL is currently enjoying.

What we are seeing now is quite common in the field of labor law. Just part of the bargaining process - that is filled with ebbs and flows.

So talk of a lockout is premature - very premature.

Wednesday, January 4, 2012

Tonight On Offside - 2011: Year In Review

Tonight on Offside: The Business and Law of Sports, we are doing a special show - 2011: Year In Review

We go through our top 10 sports legal stories of the year. We also interview Abraham Madkour, Executive Editor of the Sports Business Journal, for the top sports business stories of the year.

Some of the picks will surprise you.

Tonight at 6pm ET on the Team 1200 am (or www.team1200.com).