New Kovy Update ("As the Kovy Turns")

[Neb00rs]

I don't know how the league can possibly claim that it circumvents anything other than the circumvention of the club's upper limit. Until they specify some other provision that is circumvented, it's an up or down vote.

It also wouldn't make any sense to allow the arbitrator to reform the deal on his own here. Neither the Devils nor Kovalchuk are parties to the arbitration. It defies logi that the arbitrator can reform a deal where neither of the parties to the deal are there to state their case. Also, allowing the arbitrator to reform the deal on his own would in effect be leaving it to the arbitrator to determine what other players the Devils will have to unload.

Exactly. The arbitrator isn't going to write a contract for Kovy and the Devils while neither parties are there and then give it to them.

[pattyelias]

The league has already made it clear that it claims the contract is invalid because of "circumvention" of the upper limit. The league is either correct or incorrect that the deal is a circumvention. If the arbitrator rules NHL was correct, 11.6(a)(iii) applies and deal is deemed void ab initio. If rules NHL incorrect 11.6(a)(v) applies, and league is required to approve the deal.

Your analysis begs the question.

I was on vacation last week so I am catching up on all this drama. I didn't see anything that stated the league is claiming the contract violates the Devils going over the upper limit of the cap. To me, going over the upper limit is cut and dry. Either they are above the 10% allowance above 59.4 million or they aren't. The league cannot allege that the cap hit is 11.5 million and therefore the Devils are over. That is just a ridiculous argument and one doomed to fail.

[Triumph]

I don't know how the league can possibly claim that it circumvents anything other than the circumvention of the club's upper limit. Until they specify some other provision that is circumvented, it's an up or down vote.

It also wouldn't make any sense to allow the arbitrator to reform the deal on his own here. Neither the Devils nor Kovalchuk are parties to the arbitration. It defies logic that the arbitrator can reform a deal where neither of the parties to the deal are there to state their case. Also, allowing the arbitrator to reform the deal on his own would in effect be leaving it to the arbitrator to determine what other players the Devils will have to unload. In other words the arbitrator is not only determining the fate of the parties to the contract at issue (who themselves are not parties to the arbitration) but players whose contracts are not even at issue.

the latter case is totally immaterial to what's at hand. if the arbitrator had those powers, it wouldn't matter what players the devils had to get rid of.

also i don't think this will be looked at as a circumvention of the club's upper limit. the clause to me is 26.3 (a) and 26.3 (b) regarding actions that have the effect of circumventing the agreement.

Edited July 27, 2010 by Triumph

[Daniel]

the latter case is totally immaterial to what's at hand. if the arbitrator had those powers, it wouldn't matter what players the devils had to get rid of.

also i don't think this will be looked at as a circumvention of the club's upper limit.

It has to be a circumvention of the team's upper limit. The argument against front loaded deals, is and always has been, that tacking on years at the end that the player/team have no intent to honor, artifically lowers a player's cap hit, and thus has allowed the team to circumvent the team's upper limit. Whether the league is right or wrong on what it claims is wrong with the contract has nothing to do with whether the arbitrator has the power to reform the deal on his own.

And who is a party or not a party to the arbitration is quite relevant to what the arbitrator is allowed to do. You're correct that the CBA says what it says. The point I'm making is that hockeynews has to be wrong, not only based on the text of the CBA, but also the because of the absurd results if the hockeynews were correct.

ADDENDUM: While the league has at not publicly specified circumvention of the upper limit, it can't rely on the broad catch-all when there is a provision that applies directly to what the league claims is in fact wrong with the deal.

Edited July 27, 2010 by Daniel

[Devils731]

I was on vacation last week so I am catching up on all this drama. I didn't see anything that stated the league is claiming the contract violates the Devils going over the upper limit of the cap. To me, going over the upper limit is cut and dry. Either they are above the 10% allowance above 59.4 million or they aren't. The league cannot allege that the cap hit is 11.5 million and therefore the Devils are over. That is just a ridiculous argument and one doomed to fail.

I believe it's that the Devils are trying to circumvent the upper limit by artificially creating a lower cap value in a contract, due to bogus years tacked on at the end. The reason you would artificially want a lower cap hit is because of the upper limit of the cap. So any case of trying to create lower cap hits is due to the upper limit of the cap.

© because it is or

involves a Circumvention of either the Club's Upper Limit or the

Maximum Player Salary, and:

The clause basically says if you're doing circumvention to try and get the player the player more money than allowed or do a circumvention because their is an upper limit to the cap, a rejection can take place, not because a contract would violate the upper limit by itself(although that would certainly count as well)

(A) because it results in

the signing Club exceeding the Upper Limit, or (B) because it does

not comply with the Maximum Player Salary or

Clause C is redundant and not needed if it was only in place for actually going over the upper limit or player salary, since clause A and B cover those situations.

That's my interpretation, otherwise the league wouldn't be able to reject contracts out of hand that blatantly violate section 26.

[Triumph]

that's not true 731, a circumvention of the maximum player salary or the club's upper limit could involve under the table payments, endorsement deals, and so forth. the things enumerated at the end of section 26 are these circumventions (though obviously not limited to those)

Edited July 27, 2010 by Triumph

[Devils731]

that's not true 731, a circumvention of the maximum player salary or the club's upper limit could involve under the table payments, endorsement deals, and so forth. the things enumerated at the end of section 26 are these circumventions (though obviously not limited to those)

Those would all be upper cap limit violations, IMO.

Otherwise the CBA doesn't give the league the power to void a contract with under the table payments, until the under the table payments happen and then use section 26 after the fact.

To void the contract beforehand you would have to say a contract with an under the contract payment is a circumvention due to their being an upper limit to the cap, which is true.

Edited July 27, 2010 by Devils731

[Niaure]

Sorry for ot, but didn,t wanted to create another thread just of this... So, Dainius Zubrus is in Lithuania now. He became the president of his created children hockey league. Now he have some business around, will travel some towns... But what is more relevant to us is this : Zubrus: "After the season I talked to the team, and as I understood they not gonna trade me, so probably I will stay in NJ" - - I'm so happy about this, and hope this will be true. Here's the Lithuanian link with some photos : http://sportas.delfi.lt/national/dzubrus-plecia-lietuvos-vaiku-ledo-rituli.d?id=34887085

[Triumph]

Those would all be upper cap limit violations, IMO.

Otherwise the CBA doesn't give the league the power to void a contract with under the table payments, until the under the table payments happen and then use section 26 after the fact.

that's presumably because it wouldn't know about the under the table payments until they happened. section 26 gives the league the right to investigate at any time whether or not a circumvention has occurred. obviously under the table payments themselves are also covered elsewhere; section 26 just makes sure that if they do happen, the league has the ability to void the contract and fine those responsible.

To void the contract beforehand you would have to say a contract with an under the contract payment is a circumvention due to their being an upper limit to the cap, which is true.

why so? what if the team wanted the under the table payments to keep the money they get from revenue-sharing, or for some other reason that's not just evading the upper limit?

[insanity_gallops]

Sorry for ot, but didn,t wanted to create another thread just of this... So, Dainius Zubrus is in Lithuania now. He became the president of his created children hockey league. Now he have some business around, will travel some towns... But what is more relevant to us is this : Zubrus: "After the season I talked to the team, and as I understood they not gonna trade me, so probably I will stay in NJ" - - I'm so happy about this, and hope this will be true. Here's the Lithuanian link with some photos : http://sportas.delfi.lt/national/dzubrus-plecia-lietuvos-vaiku-ledo-rituli.d?id=34887085

Awesome. Here's hopin' Zubrus sticks around... I really think the Devils will be in worse shape up front if he's dealt.

[DaneykoIsGod]

I was on vacation last week so I am catching up on all this drama. I didn't see anything that stated the league is claiming the contract violates the Devils going over the upper limit of the cap. To me, going over the upper limit is cut and dry. Either they are above the 10% allowance above 59.4 million or they aren't. The league cannot allege that the cap hit is 11.5 million and therefore the Devils are over. That is just a ridiculous argument and one doomed to fail.

The only other "upper limit" I could imagine the NHL could argue the Devils are circumventing is the limit on what any inidividual player can make. From what I understand, the cap AND salary limit is 20% of the salary cap. Since the cap is $59.4M, 20% of that is $11.88M, and neither Kovalchuk's cap hit nor salary in any given year exceeds that upper limit. Unless there are bonuses on top of those $11.5 years?

[mmajeski06]

Sorry for ot, but didn,t wanted to create another thread just of this... So, Dainius Zubrus is in Lithuania now. He became the president of his created children hockey league. Now he have some business around, will travel some towns... But what is more relevant to us is this : Zubrus: "After the season I talked to the team, and as I understood they not gonna trade me, so probably I will stay in NJ" - - I'm so happy about this, and hope this will be true. Here's the Lithuanian link with some photos : http://sportas.delfi.lt/national/dzubrus-plecia-lietuvos-vaiku-ledo-rituli.d?id=34887085

Nice! Thanks for the info.

[Devils731]

that's presumably because it wouldn't know about the under the table payments until they happened. section 26 gives the league the right to investigate at any time whether or not a circumvention has occurred. obviously under the table payments themselves are also covered elsewhere; section 26 just makes sure that if they do happen, the league has the ability to void the contract and fine those responsible.

Section 26 doesn't give the league the power to not certify a contract, unless I missed it somewhere? So not certifying this contract must fall under either A, B, or C, is how I read it. So the circumvention going on that led to the league not to certify the contract was because the contract had circumvention due to an upper limit to the salary cap. What other part for not certifying the contract could be used?

why so? what if the team wanted the under the table payments to keep the money they get from revenue-sharing, or for some other reason that's not just evading the upper limit?

How would under the table payment to a player prevent revenue sharing? The team would still be accounting for the revenue coming in.

[Daniel]

The only other "upper limit" I could imagine the NHL could argue the Devils are circumventing is the limit on what any inidividual player can make. From what I understand, the cap AND salary limit is 20% of the salary cap. Since the cap is $59.4M, 20% of that is $11.88M, and neither Kovalchuk's cap hit nor salary in any given year exceeds that upper limit. Unless there are bonuses on top of those $11.5 years?

That would also only allow the arbitrator to vote up or down since 11.6(a)(i) also refers to circumvention of maximum player salary

[Daniel]

The league cannot allege that the cap hit is 11.5 million and therefore the Devils are over. That is just a ridiculous argument and one doomed to fail.

That's why the majority of commentators say the NHL is going to lose.

[pattyelias]

It has to be a circumvention of the team's upper limit. The argument against front loaded deals, is and always has been, that tacking on years at the end that the player/team have no intent to honor, artifically lowers a player's cap hit, and thus has allowed the team to circumvent the team's upper limit. Whether the league is right or wrong on what it claims is wrong with the contract has nothing to do with whether the arbitrator has the power to reform the deal on his own.

And who is a party or not a party to the arbitration is quite relevant to what the arbitrator is allowed to do. You're correct that the CBA says what it says. The point I'm making is that hockeynews has to be wrong, not only based on the text of the CBA, but also the because of the absurd results if the hockeynews were correct.

ADDENDUM: While the league has at not publicly specified circumvention of the upper limit, it can't rely on the broad catch-all when there is a provision that applies directly to what the league claims is in fact wrong with the deal.

The teams upper limit is $59.4 million plus $5.94 million until the end of training camp. How can the league say this deal goes above either of those numbers? Your argument of artificially lowering the cap hit is exactly what the NHL will say BUT that does not mean it goes above the upper cap limit numbers. Rather it seems to allegedly constitute a violation of the "spirit of the agreement" or some other amorphous ground as mentioned in the 11.6.a.ii.

Violating the upper limit is either you're above the 59.4 million cap hit number or not.

[Devils731]

The teams upper limit is $59.4 million plus $5.94 million until the end of training camp. How can the league say this deal goes above either of those numbers? Your argument of artificially lowering the cap hit is exactly what the NHL will say BUT that does not mean it goes above the upper cap limit numbers. Rather it seems to allegedly constitute a violation of the "spirit of the agreement" or some other amorphous ground as mentioned in the 11.6.a.ii.

Violating the upper limit is either you're above the 59.4 million cap hit number or not.

So then we expect that the arbitrator will be making an amended contract if that's the clause the league is using?

If the Arbitrator sustains the League's rejection of any such SPC

pursuant to subsection (ii) above, then the Arbitrator shall reform

the SPC such that it conforms to the requirements of this

Agreement, in a manner such that the term of the SPC shall not be

modified and the aggregate compensation to be paid to the Player

pursuant to the SPC shall, to the extent possible, be preserved. In

44

such event, immediately upon the issuance of the Arbitrator's

decision, the SPC shall for all purposes be deemed to be amended

in accordance therewith and the Player shall be eligible to play.

The Player and Club shall be free to agree on a different

conforming SPC within three (3) days.

I don't think this is the case as nobody feels Kovy wouldn't be an UFA in the case of a league win, but if the league is using ii then Kovy would have to stay a Devil, regardless of the outcome. Somebody would have mentioned that, just to correct all the wrong information, I would think.

[Daniel]

The teams upper limit is $59.4 million plus $5.94 million until the end of training camp. How can the league say this deal goes above either of those numbers? Your argument of artificially lowering the cap hit is exactly what the NHL will say BUT that does not mean it goes above the upper cap limit numbers. Rather it seems to allegedly constitute a violation of the "spirit of the agreement" or some other amorphous ground as mentioned in the 11.6.a.ii.

Violating the upper limit is either you're above the 59.4 million cap hit number or not.

Section 11.6(a)(i) doesn't apply to a "violation" of the upper limit, but "circumvention". In ordinary and legal parlance they're not the same thing.

"Violate" would mean, by their terms all of the contracts on a team go above the cap.

Dictionary.com definition of circumvent: to avoid (defeat, failure, unpleasantness, etc.) BY ARTFULNESS OR DECEPTION; avoid by anticipating or outwitting. NHL can only argue that fron loaded deals avoid the upper limit by virtue of artful or deceptive terms.

Edited July 27, 2010 by Daniel

[pattyelias]

Section 11.6(a)(i) doesn't apply to a "violation" of the upper limit, but "circumvention". In ordinary and legal parlance they're not the same thing.

"Violate" would mean, by their terms all of the contracts on a team go above the cap.

Dictionary.com definition of circumvent: to avoid (defeat, failure, unpleasantness, etc.) BY ARTFULNESS OR DECEPTION; avoid by anticipating or outwitting. NHL can only argue that fron loaded deals avoid the upper limit by virtue of artful or deceptive terms.

How does Kovalchuk's deal on it's own circumvent the upper limit? It may circumvent his cap hit but to prove circumvention of the team's upper limit wouldn't you have to take the rest of the teams contracts into account?

[Daniel]

How does Kovalchuk's deal on it's own circumvent the upper limit? It may circumvent his cap hit but to prove circumvention of the team's upper limit wouldn't you have to take the rest of the teams contracts into account?

Perhaps not on its own in a literal sense. However, the provision that allows the league/arbitrator to void a single contract because it circumvents the upper limit could never apply. Basic principal of contract law is that you can't interpet a contract in such a way that would render other provisions superfluous.

Also, the precise language is "INVOLVES a Circumvention of . . . the Club's Upper Limit". "Involve" would be intrepeted to mean, aids in accomplishing the end of circumvention.

Edited July 27, 2010 by Daniel

[pattyelias]

So then we expect that the arbitrator will be making an amended contract if that's the clause the league is using?

I don't think this is the case as nobody feels Kovy wouldn't be an UFA in the case of a league win, but if the league is using ii then Kovy would have to stay a Devil, regardless of the outcome. Somebody would have mentioned that, just to correct all the wrong information, I would think.

It's also possible that since this hasn't happened before none of the pundits really know what is the 'right information'.

[pattyelias]

Perhaps not on its own in a literal sense. However, the provision that allows the league/arbitrator to void a single contract because it circumvents the upper limit could never apply. Basic principal of contract law is that you can't interpet a contract in such a way that would render other provisions superfluous.

Also, the precise language is "INVOLVES a Circumvention of . . . the Club's Upper Limit". "Involve" would be intrepeted to mean, aids in accomplishing the end of circumvention.

Contracts was my worst class in law school.

Provision C in 11.6.a.i may apply under your reading. However, I still haven't found anything that shows the NHL rejected the contract under that provision.

[sundstrom]

Provision C in 11.6.a.i may apply under your reading. However, I still haven't found anything that shows the NHL rejected the contract under that provision.

and you won't. everything we've been discussing (as well as anyone else) is littered with conjecture because the NHL simply said "this contract circumvents the CBA". that's their official statement. it's intentionally vague and broad so that they can use the entire document to try and win - whether it be sections 11 OR 26.

[Daniel]

Contracts was my worst class in law school.

Provision C in 11.6.a.i may apply under your reading. However, I still haven't found anything that shows the NHL rejected the contract under that provision.

Because Provision C is part of 11.6(a)(i), it applies, along with (A) and (B), when another provision refers generically to 11.6(a)(i), unless stated otherwise.

[pattyelias]

Because Provision C is part of 11.6(a)(i), it applies, along with (A) and (B), when another provision refers generically to 11.6(a)(i), unless stated otherwise.

However, the grounds of the rejection defines the scope of the arbitrator's powers. If the league rejected under 11.6.a.ii then the arbitrator can conform the contract to the CBA. I haven't seen anything affirmatively stating that the rejection was under 11.6.a.i.