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Rumor: Devils plan to/have challenge(d) Kovy penalty

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This already went to an arbitrator the first time around.

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This already went to an arbitrator the first time around.

 

For the contract itself or for the punishment. I think it was just for the contract itself.

 

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For the contract itself or for the punishment. I think it was just for the contract itself.

 

 

The arbitrator decided whether or not the original contract circumvented the salary cap.  His ruling had nothing to do with the penalties which followed.  However, I remember reading something that came out aroudn that time that Lou stated we would not appeal the penalties. 

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The arbitrator decided whether or not the original contract circumvented the salary cap.  His ruling had nothing to do with the penalties which followed.  However, I remember reading something that came out aroudn that time that Lou stated we would not appeal the penalties. 

 

 

Maybe he was waiting for a new CBA. Besides what's the harm? Not like they could punish them further

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Maybe he was waiting for a new CBA. Besides what's the harm? Not like they could punish them further

 

I'm with you.  I think thought the penalty was BS from the beginning.

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It honestly makes sense to wait until the last pick to try to avoid the penalty.     The longer you wait, the more room you create and can classify the times as "uncertain".   The new CBA eliminated this uncertainty and the Devils could argue against the harshness of the penalty.

Again, I think the penalty sticks; but this is their best time to defend against it.   Maybe they can talk it down to a  lesser round, etc

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I'm with you.  I think thought the penalty was BS from the beginning.

 

If it was the fine and the 3rd I'd wouldn't have been happy with it but understood it. The 1st just seemed petty and overly punitive.

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I'm with you.  I think thought the penalty was BS from the beginning.

 

absolutely. I would have been fine with just a fine$$ but the first round pick is clearly wayyyyy too harsh

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I always thought this penalty was completely ridiculous. Really hope they challenge this to the extent that it's possible.

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The league wanted there to be a salary cap penalty or the Devils forfeiting their 2011 pick.

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The league wanted there to be a salary cap penalty or the Devils forfeiting their 2011 pick.

 

Bettman also told the media when the matter went to the arbitrator that the NHL was simply looking to have the conract nullified, and was not looking to penalize the team. 

At least, that's what I remember reading Bettman said in an article from that period.

Although I think the penalty was overly harsh and born out of Bettman getting his panties in a bunch for Lou making a mockery out of the system he and his lawyers created, I would have less of a problem with the penalty if it was applied to other cap circumventing teams.  The league's utter disregard for the Devils, and inability to stand up to the high revenue generating clubs in this regard was sickening.

 

Here's TG's post from September 14, 2010 about the Devils not appealing the penalties.

 

http://blogs.northjersey.com/blogs/fireice/comments/bettman_theres_not_going_to_be_an_appeal/

Edited by Chuck the Duck

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wow.. wonder whats going to happen with this and if its even legit or not.. guess well have to just wait and see if we hear more news on it

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Pretty sure there wasn't - the penalty was rumored/believed to have been discussed by the PA and NHL when they ratified the 2nd Kovalchuk contract.

The PA would have been involved to ensure that Kovalchuk wasn't penalized. They wouldn't have cared too much about what happened to the Devils as long as their members' interests were protected.

 

Interesting - I still don't see how they get this before an arbitrator, or how the arbitrator rules in the Devils favor, but it could be a way out.

I agree that getting it before an arbitrator would be tricky, but IMO, the Devils have a fairly good case. There was precedent for accepting these contracts that skirted the boundaries of the CBA, so it could be argued that coming down on the Devils like a ton of bricks while doing nothing to the other teams that had supposedly violated the CBA was excessive and arbitrary.

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I agree that getting it before an arbitrator would be tricky, but IMO, the Devils have a fairly good case. There was precedent for accepting these contracts that skirted the boundaries of the CBA, so it could be argued that coming down on the Devils like a ton of bricks while doing nothing to the other teams that had supposedly violated the CBA was excessive and arbitrary.

 

I think arguing the penalty was excessive and arbitrary has 2 problems.  1)  Was the penalty excessive and arbitrary?  That's a judgement call, the league will argue no and the Devils will argue yes and so it becomes he said. she said type thing. 2)  Is there any language to prevent the league from being excessive and arbitrary?  I don't think there really is, the league is really given almost carte blanche in deciding punishment.  You can argue rules were not broken but I find it very hard to rule the league isn't allowed to lay out any penalty it wants.

 

Basically the Devils are part of the NHL which is governed by the CBA, the NHLPA, the BOG, and the Commisioner.  There really isn't a "that's not fair" argument that you can make to an arbitrator because the person who defines fairness is also the person who gave the penalty.  You would need the league admitting to the arbitrator that the ruling was unfair to get an arbitrator to rule in your favor, IMO.

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This was more or less a labor negotiation between the league and the PA.   Good luck with that.

 

Of course part of that agreement was already broken with cap recapture, but I don't see how this goes anywhere.

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I think arguing the penalty was excessive and arbitrary has 2 problems.  1)  Was the penalty excessive and arbitrary?  That's a judgement call, the league will argue no and the Devils will argue yes and so it becomes he said. she said type thing. 2)  Is there any language to prevent the league from being excessive and arbitrary?  I don't think there really is, the league is really given almost carte blanche in deciding punishment.  You can argue rules were not broken but I find it very hard to rule the league isn't allowed to lay out any penalty it wants.

 

Basically the Devils are part of the NHL which is governed by the CBA, the NHLPA, the BOG, and the Commisioner.  There really isn't a "that's not fair" argument that you can make to an arbitrator because the person who defines fairness is also the person who gave the penalty.  You would need the league admitting to the arbitrator that the ruling was unfair to get an arbitrator to rule in your favor, IMO.

The penalty isn't excessive and arbitrary based on the actual terms (although I wouldn't oppose someone making that argument). The problem with the penalty is that the Devils were the only team to be hit. The league turned a blind eye to other, similar cap circumventions and randomly decided enough was enough when the Devils did it; while they're within their rights to put a stop to those contracts, it is inconsistent to punish only one of many guilty parties.

I could ask the rhetorical question "what's different about the Kovalchuk contract that caused it to be blocked while other, similar contracts were allowed?", but someone would be pedantic enough to answer it. The point is that the CBA was vague enough in this particular area that there was no clear "letter of the law", with the closest you can come to it being "commissioner's discretion", and I have a hard time accepting an argument that violations of the "spirit of the law" are punishable by BOTH a stiff fine AND the forfeiture of multiple draft picks.

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It doesn't really matter if the punishment was arbitrary or fair, you have to explain why the league doesn't have the right to punish teams as they feel fit.  The CBA gives the league that authority so an arbitrator isn't going to decide the CBA shouldn't be followed and he'll go with his gut.

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Why should the league get to see fit to punish only the Devils and no one else?

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Why should the league get to see fit to punish only the Devils and no one else?

The league gets to decide the appropriate punishment on everyone and that's what they did.

The Devils need a better argument than "it wasn't fair" since the league gets to decide on fairness.

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Technically they did end up punishing everyone after signing off that they wouldn't.   Of course that was another labor negotiation, that for many of the cases, is subject to another labor negotiation in the future.

 

It is what it is, they were the ones caught in the cookie jar.   Inventing their own minimum salary 10+ years out into the future probably didn't help the cause, either.

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The league gets to decide the appropriate punishment on everyone and that's what they did.

The Devils need a better argument than "it wasn't fair" since the league gets to decide on fairness.

Yes, I'll admit that you could distill the argument down to "it's not fair", especially if you're doing so to discredit it. But that's the thing: DOES the league get to decide on fairness? Do they get to single out the Devils because, as maxpower said, the Devs were the ones who were caught with their hands in the cookie jar? The league knew that other teams had been in the cookie jar too, but only the Devils got punished for it. Is that something they're allowed to do?

Maybe that won't be the argument (assuming, of course, that these rumors are true). Maybe -- instead of fairness, equitability, what have you -- they'll go with the severity of the punishment, specifically the severity of losing a first-round draft pick. That is, does the punishment fit the crime, or is it more evidence that the league went overboard to make an example of the Devils?

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The league gets to decide fairness and severity, that's what the CBA says.  If you have a problem with the fairness or severity there is an appeals process so the arbitrator needs a reason for you saying the language of the CBA isn't applicable here and I don't see any reason why that is so.

 

The league knew that other teams had been in the cookie jar too, but only the Devils got punished for it. Is that something they're allowed to do?

 

 

In short, yes, the league gets to decide punishments, just like the league gets to decide suspension lengths for players where Player A does the same thing as Player B but Player A gets no punishment and Player B gets severe punishment for no discernible difference.  There is an appeals process for both so it's unlikely an arbitrator could be brought in.  Then, even if you get it to an arbitrator somehow, you need a reason why the process that was agreed upon wasn't followed properly.

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Technically they did end up punishing everyone after signing off that they wouldn't.   Of course that was another labor negotiation, that for many of the cases, is subject to another labor negotiation in the future.

 

It is what it is, they were the ones caught in the cookie jar.   Inventing their own minimum salary 10+ years out into the future probably didn't help the cause, either.

 

Isn't it then basically penalizing the devils twice?  I though legally you can get penalized twice for the same crime, so to say.  Anyway, they might not see the cap recapture as a penalty, just an adjustment to the CBA.

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Why should the league get to see fit to punish only the Devils and no one else?

 

The NHL's only response to this has been, and will continue to be, that the arbitrator ruled the initial Kovy contract circumvented the cap.  No other team was found to have done that with 1 of their player contracts and for this reason, and this reason, alone, the Devils were the only team punished. 

 

The obvious problem with the NHL's position is that they never challenged any of the other cap circumvention contracts (DiPietro, Luongo, Pronger, Zetterberg, etc.), so nobody knows how an arbitrator would have ruled on those deals.  

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Isn't it then basically penalizing the devils twice?  I though legally you can get penalized twice for the same crime, so to say.  Anyway, they might not see the cap recapture as a penalty, just an adjustment to the CBA.

 

In the criminal world, you can't be penalized for the same crime twice (it's called double jeopardy).  HOwever, the NHL operates by its own set of rules and standards which are not goverened the same way as our justice system.  That's why we can be penalized twice, seemingly at the whim of the great Dictator himself, Gary Bettman.

 

bettman-rat.jpg

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