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We now have the 30th pick


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#141 Daniel

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Posted 06 March 2014 - 08:44 PM

I think today's development is a fair resolution of the whole Kovlchuk saga. Yes, the Devils arguably violated the spirit (and perhaps the letter) of the CBA cap rules, but they didn't do anything that numerous other teams hadn't already done. The league determined it had to put its foot down and decided to make the Devils the example (we can speculate as to why NJ ad nauseam).

In any event, I'm not at all surprised that the penalty was lessened in this manner. To me, the most interesting comment that Lamoriello has ever made about the loss of the draft pick was last summer, when he expressly revealed that he wasn't worried and the team's attorneys were looking at the Devils' options. My read is that the league knew that even if the original penalty was upheld by the league arbitrator, Lamoriello and the Devils could make a real mess of things. How? First, challenge the ruling in arbitration. If you lose, wait until the eve of the draft and file a lawsuit and an application for a temporary restraining order and preliminary injunction preventing the league from enforcing the penalty until the litigation was complete (have another donut!). Yes, it is VERY difficult to overturn an arbitrator's ruling in court (isn't that right, A-Rod)?, and it is likely that the Devils would have ultimately lost the lawsuit and the original penalty would have been upheld. BUT the damage for the NHL likely would have been severe, and may in fact have been catastrophic. How? Let's say the Devils get the injunction. Now all of a sudden they have a pick that according to the league's official position is invalid. The Devils make their pick, and the league is legally powerless to stop it. The other teams could theoretically challenge the validity of the draft. There could be uncertainty with EVERY subsequent selection after the Devils pick. And there is potentially a real mess if and when the NHL position were upheld by the court. Yes, the league could roll the penalty over until the next draft, but even then creative lawyers for any of the teams or draftees in either draft could make a lot of trouble if they wanted to.

Moral of the story -- both sides recognized that it was in everybody's interest to do a deal. Throw in the fact that both Vanderbeek AND Kovalchuk are no longer with the franchise, and you have a nice cover story to "explain" or rationalize the modification (not that I think that this had nothing to do with the change -- but I don't believe for a second that it was the driving factor).

So despite the bitching by some fans of other teams (even setting side the whole pot/kettle thing), this was a positive development for everyone. And, in my opinion, fair also.

This wouldn't work for several reasons. In the bylaws there is a provision that if you challenge a league ruling in court you face enormous penalties. That comes from when the Devils got an injunction against Schoenfeld being suspended in the 88 playoffs. There's also a legal principle called laches which prevents you from intentionally sitting on your rights to the detriment of your adversary, which is what delaying a law suit until the eve of the draft would be.

Ultimately, I think it came down to the new ownership making the case that hockey in NJ can only work if the team is competitive. Despite our conspiracy theories, the league wants all of its teams to be profitable and play to large crowds.

Addendum: there's also a misconception about temporary injunctions that courts just dole them out upon request. You would have to show a likelihood of success on the merits, which the Devils' attorneys could get sanctioned for arguing existed.



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Edited by Daniel, 06 March 2014 - 09:09 PM.

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#142 Devil Dan 56

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Posted 06 March 2014 - 09:18 PM

Per Lebrun, if we miss the playoffs, we would still be in the lottery. If we won, the team that had the worst record, likely Buffalo, would move up to number 1, and so on. Seems like a really sick joke.


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Pretty much guarantees a lottery win, I guess   :dizzy:


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#143 CarpathianForest

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Posted 06 March 2014 - 09:24 PM

Now that we've got 30th pick we need to win the Stanley Cup this season.


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#144 smelly

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Posted 06 March 2014 - 09:34 PM

This wouldn't work for several reasons. In the bylaws there is a provision that if you challenge a league ruling in court you face enormous penalties. That comes from when the Devils got an injunction against Schoenfeld being suspended in the 88 playoffs. There's also a legal principle called laches which prevents you from intentionally sitting on your rights to the detriment of your adversary, which is what delaying a law suit until the eve of the draft would be. Ultimately, I think it came down to the new ownership making the case that hockey in NJ can only work if the team is competitive. Despite our conspiracy theories, the league wants all of its teams to be profitable and play to large crowds. Addendum: there's also a misconception about temporary injunctions that courts just dole them out upon request. You would have to show a likelihood of success on the merits, which the Devils' attorneys could get sanctioned for arguing existed. Sent from my iPhone using Tapatalk

 

Remember, it's the threat that counts here.  Notwithstanding the bylaw provision, there is nothing that would prevent the Devils from advising the league that they would go forward with litigation and challenge the bylaw as unconscionable and unenforceable.  A tough argument ultimately to succeed on, but in a game of bluff-calling all bets are off.

 

As for laches, whether the litigation were so unreasonably delayed such that it should be equitably barred would depend on the facts, and I believe your assumption is too facile here.  The arbitration was in January -- waiting five or six months to file would not presumptively be improper under NJ law.  Also, even if you filed the lawsuit immediately after the arbitration decision, the PI application need not necessarily be filed and/or decided immediately -- and could plausibly be argued to be premature if brought at that time.

 

Finally, although likelihood of success is an element of a TRO/PI ruling, we all know that as a practical matter where there is a strong case for irreparable harm (one of the other elements of the test) many courts (state courts in particular) apply a somewhat relaxed standard for likelihood of success (even if they don't admit as much).   I strongly disagree that the Devils attorneys would be remotely exposed to sanctions for filing such an application, especially if they included a challenge to the bylaw itself.  Judges are loathe to impose sanctions for anything other than the most egregious conduct, and this certainly would not rise to that level.


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#145 sundstrom

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Posted 06 March 2014 - 09:50 PM

smelly v daniel (dum dum) (law and order bells)

 

i was desperately looking for lawyerfight.gif but could not find.


Edited by sundstrom, 06 March 2014 - 09:50 PM.

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#146 Satans Hockey

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Posted 06 March 2014 - 10:05 PM

I think it came down to the new ownership making the case that hockey in NJ can only work if the team is competitive. Despite our conspiracy theories, the league wants all of its teams to be profitable and play to large crowds.


A 30th pick in the draft isn't going to determine whether or not the team is competitive though.

Edited by Satans Hockey, 06 March 2014 - 10:05 PM.

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#147 Daniel

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Posted 06 March 2014 - 10:06 PM

Remember, it's the threat that counts here. Notwithstanding the bylaw provision, there is nothing that would prevent the Devils from advising the league that they would go forward with litigation and challenge the bylaw as unconscionable and unenforceable. A tough argument ultimately to succeed on, but in a game of bluff-calling all bets are off.

As for laches, whether the litigation were so unreasonably delayed such that it should be equitably barred would depend on the facts, and I believe your assumption is too facile here. The arbitration was in January -- waiting five or six months to file would not presumptively be improper under NJ law. Also, even if you filed the lawsuit immediately after the arbitration decision, the PI application need not necessarily be filed and/or decided immediately -- and could plausibly be argued to be premature if brought at that time.

Finally, although likelihood of success is an element of a TRO/PI ruling, we all know that as a practical matter where there is a strong case for irreparable harm (one of the other elements of the test) many courts (state courts in particular) apply a somewhat relaxed standard for likelihood of success (even if they don't admit as much). I strongly disagree that the Devils attorneys would be remotely exposed to sanctions for filing such an application, especially if they included a challenge to the bylaw itself. Judges are loathe to impose sanctions for anything other than the most egregious conduct, and this certainly would not rise to that level.


The penalty came down three years ago. There was no "arbitration" in January. It was the Devils making a case to the league. Yeah, some judges do weird things on occasion, but a judge is ultimately going to look at your papers, and ask why you waited three years to challenge this penalty, and why are you asking me to issue an emergency injunction that you could have sought years ago, or at least a few weeks ago, where this could have been decided on the merits ahead of time.

Ultimately we're talking about a draft pick in a hockey league. It's not a case of a company that's about to go out of business, or a person that's going to be taken off of life support.


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#148 smelly

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Posted 06 March 2014 - 10:10 PM

The penalty came down three years ago. There was no "arbitration" in January. It was the Devils making a case to the league. Yeah, some judges do weird things on occasion, but a judge is ultimately going to look at your papers, and ask why you waited three years to challenge this penalty, and why are you asking me to issue an emergency injunction that you could have sought years ago, or at least a few weeks ago, where this could have been decided on the merits ahead of time.

Ultimately we're talking about a draft pick in a hockey league. It's not a case of a company that's about to go out of business, or a person that's going to be taken off of life support.


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I've seen injunctions issued in situations that are a far cry from the situations you cite.  And if you want to take your chances on that argument in Chancery, go right ahead.  Given all the hell it could raise, I'm not sure the NHL would roll the dice that some judge in Chancery wouldn't issue a TRO and make a mess.


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#149 Daniel

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Posted 06 March 2014 - 10:10 PM

A 30th pick in the draft isn't going to determine whether or not the team is competitive though.


Except when its Kesler or Weber, etc. Even the number 1 pick doesn't necessarily make you competitive. It just helps not to have the pick taken away wholesale.


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#150 Daniel

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Posted 06 March 2014 - 10:14 PM

I've seen injunctions issued in situations that are a far cry from the situations you cite. And if you want to take your chances on that argument in Chancery, go right ahead. Given all the hell it could raise, I'm not sure the NHL would roll the dice that some judge in Chancery wouldn't issue a TRO and make a mess.


Believe me, the NHL and its lawyers at Proskauer, Skadden or wherever would not be intimidated. The same way that MLB was not scared off by Arod's legal team and it's threats if injunctions.


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#151 MadDog2020

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Posted 06 March 2014 - 10:18 PM

smelly v daniel (dum dum) (law and order bells)

i was desperately looking for lawyerfight.gif but could not find.

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#152 sundstrom

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Posted 06 March 2014 - 10:22 PM

lawyer.png

 

 

that'll work. bravo.


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"This team was never the same once we lost Patrik Sundstrom"- Lou Lamoriello


20082719943.png
_________________________________________________________________
“They’re the ones that makes it happen,” Lemaire said. “It’s not us. It’s not me. It’s not the other guy. It’s not the guy before. It’s not the guy after. It’s them. And they have to take care of business.”
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#153 SterioDesign

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Posted 06 March 2014 - 10:30 PM

Better call Saul Lou !
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#154 sundstrom

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Posted 06 March 2014 - 10:32 PM

https://www.youtube....h?v=z69tJIaajwA


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"This team was never the same once we lost Patrik Sundstrom"- Lou Lamoriello


20082719943.png
_________________________________________________________________
“They’re the ones that makes it happen,” Lemaire said. “It’s not us. It’s not me. It’s not the other guy. It’s not the guy before. It’s not the guy after. It’s them. And they have to take care of business.”
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"I guess I just miss my friend" (#28)


#155 smelly

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Posted 06 March 2014 - 10:39 PM

Believe me, the NHL and its lawyers at Proskauer, Skadden or wherever would not be intimidated. The same way that MLB was not scared off by Arod's legal team and it's threats if injunctions.


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I agree -- they are not intimidated.  But they are practical. I've settled many a case with those very same lawyers at Proskauer, Skadden and the like.  And they don't turn down a reasonable deal that provides their clients with a satisfactory resolution and the certainty that goes with it.

 

And A-Rod had no case -- legally or factually.  Totally different situation.

 

And to the rest of the board -- you're welcome for the copper wire.


Edited by smelly, 06 March 2014 - 10:40 PM.

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#156 Daniel

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Posted 06 March 2014 - 11:03 PM

I agree -- they are not intimidated. But they are practical. I've settled many a case with those very same lawyers at Proskauer, Skadden and the like. And they don't turn down a reasonable deal that provides their clients with a satisfactory resolution and the certainty that goes with it.

And A-Rod had no case -- legally or factually. Totally different situation.

And to the rest of the board -- you're welcome for the copper wire.


The Devils had less of a case than Arod, especially if they decided to get an injunction on the eve of the draft. And yeah, sometimes you can get a decent settlement out of a dog of a case. This is not the case, since the Devils had a lot more to lose than a judge just saying no.


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#157 Brandon

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Posted 06 March 2014 - 11:06 PM

2014 is a relatively weak draft but it's still possible to get some quality players out of this draft. Jakub Vrana is intriguing as a late 1st Rounder, could be there at 30.


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#158 MadDog2020

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Posted 06 March 2014 - 11:42 PM

But once again, this is the Lou Lamoriello show. The smartest man in hockey won the Kovalchuk deal from start to finish. First he worked within the rules to lock up an elite talent for the rest of his NHL career. Then he made sure Kovalchuk's "retirement" occurred just before the league's increased cap recapture penalties kicked in. Now this. http://deadspin.com/...dium=socialflow


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#159 CarterforPresident

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Posted 07 March 2014 - 02:10 AM

As if we are the only ones. As has been pointed out, other teams signed just as bad deals with example, Luongo, yashin and hossa and others. But yet they go untouched? That's more of a rant by that blogger cursingeft and right. Ffs.
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#160 Neb00rs

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Posted 07 March 2014 - 03:14 AM

@DarrenDreger: Needless to say, NHL teams are not happy with the leagues decision to let the Devils off the hook.


Haha, the other 29 teams can eat a dick.

 

Yup, yup. They can.


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