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


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#21 Triumph

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Posted 25 June 2013 - 11:59 AM

Ok, I took a quick look at the NHL Constitution and by-laws.  A team can challenge a penalty that involves the loss of draft picks to the Board of Governors, and the commissioner's punishment can be reversed by a 3/4 vote.  The by-laws provide a fairly detailed procedure for a hearing before the Board of Governors.  Interestingly, there's a provision that allows the team challenging a penalty to move to disqualify a presiding member for bias, which obviously the Devils could argue is the case since every other team would stand to benefit by the Devils losing a draft pick.  This could be a backdoor means of bringing the case before a neutral arbitrator.  I don't see anything that provides for a time period after a penalty is announced to bring a challenge. 

 

This is a very quick analysis, so don't take my word as gospel.

 

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.


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#22 Daniel

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Posted 25 June 2013 - 12:15 PM

TG's response:

 

 

Tom Gulitti
@TGfireandice

  bg_bubble-top.png Nope. There is no means for them to do so.

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#23 Devilsfan118

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Posted 25 June 2013 - 12:18 PM

Well that's disappointing.

 

I'm still not going to believe it completely though, it's not like TG knows every single legal loophole in the book.


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#24 MadDog2020

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Posted 25 June 2013 - 12:20 PM

How the hell is there no means for them to do so when the bylaws imply there's a way for them to do so? fvcking legal jargon.
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#25 Daniel

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Posted 25 June 2013 - 12:23 PM

How the hell is there no means for them to do so when the bylaws imply there's a way for them to do so? fvcking legal jargon.

 

I wouldn't take what TG or I say as gospel when it comes to legal matters.  I just read the by-laws/constitution very quickly, so my analysis could very well be off.  TG responded via twitter, so I wouldn't expect him to make any analysis of the documents either.    


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#26 devlman

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Posted 25 June 2013 - 12:33 PM

This already went to an arbitrator the first time around.


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#27 roomtemp

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Posted 25 June 2013 - 01:02 PM

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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#28 Chuck the Duck

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Posted 25 June 2013 - 01:30 PM

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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#29 roomtemp

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Posted 25 June 2013 - 01:39 PM

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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#30 Chuck the Duck

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Posted 25 June 2013 - 01:43 PM

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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#31 aylbert

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Posted 25 June 2013 - 01:45 PM

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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#32 roomtemp

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Posted 25 June 2013 - 01:45 PM

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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#33 SterioDesign

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Posted 25 June 2013 - 01:58 PM

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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#34 njdevsftw

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Posted 25 June 2013 - 01:58 PM

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


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#35 Triumph

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Posted 25 June 2013 - 02:12 PM

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


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#36 Chuck the Duck

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Posted 25 June 2013 - 03:02 PM

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.northje...o_be_an_appeal/


Edited by Chuck the Duck, 25 June 2013 - 03:03 PM.

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#37 2ELIAS6

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Posted 25 June 2013 - 03:46 PM

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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#38 RowdyFan42

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Posted 25 June 2013 - 04:18 PM

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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#39 Devils731

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Posted 25 June 2013 - 04:25 PM

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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#40 maxpower

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Posted 25 June 2013 - 07:26 PM

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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