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.
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.
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.