[REPORT] NHLPA files grievance on behalf of Richards for contract termination

[KeslerPlaysLikeACanadian]

It is more likely a hail mary idea by the team to see if they could get away with it. The worst case is that they get stuck with the cap hit as a regular buyout which they would have almost certainly done even absent this incident.

This is my take. I think that they just saw an opportunity and decided that the punishment would likely be inconsequential.

[elvis15]

What? Are in on trade talks? Just because they didn't buy him out, they must want him? They have said that they found out about Richards' situation during trade talks with Calgary. Based on all the rumours and reports, they have been trying to get rid of him for a long time. Sending a veteran to the AHL kinda speaks to that.

I'm talking about the opportunity he had to compliance buyout him after the lockout. Clearly he's tried the trade route since but if he was really that serious (no matter if it was "the right thing to do" or not) he would have done the buyout then and there. It lends some credence to this not being a situation where he's been trying to find a loophole for forever and he jumped at the chance.

[Borvat]

This will never get to court. Bettman doesn't want any court making any decision on anything he decides to allow or disallow. He can't and won't allow this to reach a court of law.

His arrogance and need for total control will dictate something behind closed doors that will be decided by him and his handlers to minimize damage.

This league is corrupted like all the others by internal politics and money.

[KeslerPlaysLikeACanadian]

I'm talking about the opportunity he had to compliance buyout him after the lockout. Clearly he's tried the trade route since but if he was really that serious (no matter if it was "the right thing to do" or not) he would have done the buyout then and there. It lends some credence to this not being a situation where he's been trying to find a loophole for forever and he jumped at the chance.

Fair enough, but I think it is safe to say they wanted rid of him. Of course they'll try to save themselves 20 odd million bucks.

And I think that any arbitrator will look at that.

[KeslerPlaysLikeACanadian]

It's not just a matter between the Kings and Richardson: the NHL is involved too since this bears on the salary cap and buyout provisions in the collective agreement. Whatever happens theoretically has to conform to the collective agreement, so it can't be an entirely private resolution, especially if it goes to an arbitrator. While I'd never rule out the NHL's ability to get creative with its rules, hopefully it's in somebody else's hands to make the decision.

I think that Bettman and Fehr are in a position to make a backroom handshake, get a cheque cut, come up with a line to placate the other management/ownership groups, and issue whatever statement they like. Though obviously LA's cap situation will have to be resolved one way or another.

I could be wrong. I'm not a lawyer. But I think that parties to an agreement can do this kind of thing, and I think that both sides would prefer to keep other parties from having a say.

[The Bookie]

more from Macramalla today

http://www.forbes.com/sites/ericmacramalla/2015/08/12/mike-richards-so-what-now/

NHLPA Grieves L.A. Kings Termination of Mike Richards Deal. So What Now?

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The NHLPA earlier this week filed a grievance in connection with the termination of Mike Richards’ contract by the L.A. Kings. This is as surprising as an Arian Foster soft tissue injury.

Los Angeles Kings center Mike Richards, left, and San Jose Sharks center Tomas Hertl, of the Czech Republic, dive for the puck during the third period of an NHL hockey game, Saturday, Dec. 27, 2014, in Los Angeles. The Kings won 3-1. (AP Photo/Mark J. Terrill)

It’s been about a month since the Los Angeles Kings terminated the contract of forward Richards in connection with Richards being taken into custody at the Canadian/U.S. border for the alleged unlawful possession of OxyContin pills. Richards had five years and $22 million remaining on his deal, which translates to a $5.75 million cap hit over each of the next five years.

Initially, the Kings had decided to buy out Richards. That would have resulted in a fluctuating cap hit until 2024-25, peaking in 2018 and 2019 at $4.2 million. However, by terminating his deal, the Kings would enjoy substantial cap relief as the team would only be on the hook for a cap recapture penalty of $1.32 million over each of the next five years. And of course, the team won’t have to pay Richards two-thirds of his salary, which amounts to $14.5 million.

The Kings will have a difficult time upholding the termination of Richards’ contract. Based upon the available information, the team may advance two arguments.

Terminated: Argument One

Beyond his possible border arrest, not much is known regarding the RCMP’s investigation into Richards. So at this point, the precise reasons for termination are not known. Further, whatever transpired at the border constitutes nothing more than allegations against Richards. However, let’s assume the Kings terminated the Richards contract after learning he was taken into custody in connection with the possession of OxyContin.

If that’s the case, expect the Kings to have a tough time upholding the termination of the Richards contract should the NHLPA file a grievance.

Why the uphill battle for the Kings? The reason is the NHL/NHLPA Substance Abuse And Behavioral Program Policy (or the Drug Policy).

The Drug Policy sets out specific drug treatment protocols that must be followed in the case of an arrest or conviction related to drugs. Since it was collectively bargained between the Union and the NHL, adhering to the Drug Policy is not optional for teams; it’s mandatory. For example, a team cannot simply elect to ignore the collectively bargained terms for the sake of convenience. The whole idea behind the Drug Policy is to get players the help they need. The focus of the Drug Policy is ultimately rehabilitative and not punitive.

Any departure from collectively bargained terms may be met with a grievance.

Specifically, the Drug Policy provides that any player arrested on drug charges is required to submit to a substance abuse evaluation and other treatment deemed appropriate by doctors. If the doctors determine that treatment is required, the player will be placed into Stage 1 of the alcohol or drug program. Stage 1 calls for “inpatient treatment”, although the player continues to get paid.

If a player is convicted of a controlled substance offense (including under a plea arrangement), he is placed into Stage 2 of the drug program. The player is suspended without pay during his treatment and can be reinstated by the league should doctors recommend it.

The most severe discipline called for under the Drug Policy for repeated rehab failures is a one year suspension without pay with reinstatement at the discretion of the league. We do not know all the circumstances surrounding Richards. The starting point, however, is the Drug Policy and its prescribed treatment protocols.

The Drug Policy does not call for the termination of a player contract in the event of an arrest or conviction related to drugs. It calls for a lot less.

Argument Two: Never Advised Us

The Kings may not argue it killed the deal because Richards was picked up on possession since that argument is essentially an automatic loss for the team. Rather, the team may to argue that it terminated the Richards deal because he failed to advise the team he had been arrested. The Kings were working on a trade that would have seen Richards shipped to another team, and at the eleventh hour, the Kings became aware of incident and had to pull the plug on the trade.

So the Kings may well look to distinguish between termination for being arrested for possession and termination for failing to advise of the arrest.

Will that argument fly? Probably not, but it’s worth a try if you’re the Kings. The flaw with that argument is that it assumes that there is a positive duty to advise a club of a drug related arrest. A player will not run excitedly to his team and announce he’s just been arrested. Of course that doesn’t happen. That’s the nature of the beast when it comes to drugs. Again, the Drug Policy governs.

NHLPA Bottom Line

The NHLPA will likely frame the termination as a transparent and veiled attempt to avoid paying Richards what he is owed. Richards is no longer seen as a useful player by the Kings. His termination, the NHLPA will argue, is a desperate attempt to get out of a bad deal while creating as much cap space as possible.

National Hockey League Players’ Association executive director Donald Fehr felt like he had no choice but to grieve the Mike Richards termination.

Timeline

The CBA sets out the timeline for these proceedings. They can take over two months to get resolved. The problem for Richards is that takes us into the regular season without a resolution. For that reason, the NHLPA has invoked Article 17.17 of the CBA and requested an expedited hearing to trim the timeline.

Did the NHLPA Drag Its Feet

No. The NHLPA needs to ensure it has conducted its due diligence and has a full and comprehensive understanding of the matter before filing its grievance. That takes time in a case like this that requires some level of investigation.

Who Hears The Grievance

The grievance will not be heard by Gary Bettman or Roger Goodell for that matter. This goes to an impartial arbitrator with extensive labor law experience.

Decision In Other Sports Matter

This case will be decided in keeping with fundamental labor law principles, which aren’t any different in the NHL as compared to other sports. As well, the language in the NHL player contract overlaps with that in other sports including MLB.

As I wrote here, it can be tough to successfully uphold the termination of a contract at arbitration in the North American sports landscape. Historically, absent exceptional circumstances, an arbitrator will overturn the termination of a contract. Arbitrators and judges take the individual right to earn a living very seriously and do not react favorably to an attempt to deprive someone of that fundamental right simply for the sake of convenience. Time and time again, arbitrators have sided with players.

We need only look to Major League Baseball. Here are some MLBPA wins after a team voided a contract:

In 1987, the voided Lamarr Hoyt’s contract after he was jailed following multiple drug charges, including intent to distribute cocaine and attempting to smuggle drugs from Mexico into the U.S. This would seem to be specifically the type of conduct that would justify voiding a contract – right? Wrong. The Players Association filed a grievance and won.

In 2004, the tried to cut Danny Neagle after he was charged with soliciting a prostitute. The MLBPA stepped in, and ultimately the parties agreed to a payout of $16 million on his $19.5 million contract.

In 2005, the Baltimore Orioles voided Sidney Ponson’s contract for driving while intoxicated (as well as some other stuff). The MLBPA grieved, and the sides ended up settling. According to reports, Ponson got a sizable chunk of his $11.2 million salary.

There was a case, however, where a voided contract was upheld by an arbitrator. In 2008, Shawn Chacon refused to leave the team dining room to speak with GM Ed Wade in his office. This confrontation ended with Chacon grabbing Wade by the neck and throwing him to the ground. Each time Wade tried to get up, Chacon knocked him back to the ground. Chacon’s contract was terminated with cause. The move was appealed by the MLBPA, but the appeal was unsuccessful.

So short of strangling your employer, it can be tough to successfully terminate a contract (even then, Latrell Fontaine Sprewell got 68 games for choking NBA coach P. J. Carlesimo).

And who was the MLBPA executive director presiding over the MLB cases? Donald Martin Fehr, the current head of the NHLPA. He is seasoned and ran the strongest union in sports. He brings that experience with him.

Precedent More Important Than Richards

It’s not a surprise the NHLPA has grieved the termination of Richards’ contract. From the NHLPA’s standpoint, it simply cannot allow this precedent to go unopposed as it could adversely impact its members. By allowing the termination to go unchallenged, the floodgates risk opening with teams terminating problem contracts.

http://www.forbes.com/sites/ericmacramalla/2015/08/12/mike-richards-so-what-now/

[VanGnome]

more from Macramalla today

http://www.forbes.com/sites/ericmacramalla/2015/08/12/mike-richards-so-what-now/

So bottom line is, Richards will eventually get paid after his contract has been re-instated and will go on LTIR allowing the kings to use LTIR relief at the beginning of each season until the contract runs out, a la Pronger.

NHLPA and player are happy because he gets paid, Kings are happy because they get to dodge the anchor of a cap hit

[brownky]

So bottom line is, Richards will eventually get paid after his contract has been re-instated and will go on LTIR allowing the kings to use LTIR relief at the beginning of each season until the contract runs out, a la Pronger.

NHLPA and player are happy because he gets paid, Kings are happy because they get to dodge the anchor of a cap hit

Or another possibility could be that they allow the contract termination at contract value with no cap hit. I.e. Pay the man, but no penalty.

[5nothincanucksohno]

So Richards' contract is terminated for allegedly trying to carry pills across a border and Kane allegedly raped someone and is still under contract. Interesting, this should add credence to The nhlpa greivence.

If they terminated Voynov's contract (or tried to at least), I would've been fine with them doing it to Richards.

Either keep both or neither of them.

^^ totally agree. Shows the contract termination is disingenuous.

[DeNiro]

If there's no injury and nothing stopping Richards from playing, there's no way the Kings should be allowed to get LTIR relief.

Their only option should be to put him on waivers and send him to the minors. Keeping his cap hit, but freeing up a roster spot.

[tas]

if he committed a material breach of his contract (which no one at this point has any idea about), then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing to terminating his contract.

likewise, if what voynov did was also a material breach of his contract, then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing NOT to terminate his contract.

it's not about fairness or consistency or right vs wrong. it's about what the cba allows and using that to make the right decision for their franchise.

if this situation had happened to, say, keith ballard or david booth while they were under contract in vancouver, and you found out it was possible to terminate their contracts without buying them out, you're telling me you wouldn't want to use that option?

likewise, if henrik sedin slapped his wife around and was sentenced to some jail time, you're telling me you WOULD want to use that option?

come on now.

[Provost]

if he committed a material breach of his contract (which no one at this point has any idea about), then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing to terminating his contract.

likewise, if what voynov did was also a material breach of his contract, then the kings should be able to exercise whatever rights are laid out for them in the cba, such as choosing NOT to terminate his contract.

it's not about fairness or consistency or right vs wrong. it's about what the cba allows and using that to make the right decision for their franchise.

That just isn't true. Labour and contract law have to be followed by the arbitrator. Failing to enforce a clause in one case lessens your ability to enforce it in another. NHLPL contracts are largely standard and the same as one another (aside from salary, etc).

The Voynov case will certainly be used as evidence by the NHLPA that the Kings are terminating for other reasons than the :material breach that they are suggesting.

A material breach is a specific legal term, it is something of such significance that there would be no reasonable way for the team to use discretion in applying it. If they consider off ice legal troubles to be material breaches, then to be successful in court they have to show consistency in application.

[elvis15]

Exactly, and if it's not applied consistently the NHLPA can easily argue the Kings were picking out Richards so they could get clear of his contract more so than him.

So bottom line is, Richards will eventually get paid after his contract has been re-instated and will go on LTIR allowing the kings to use LTIR relief at the beginning of each season until the contract runs out, a la Pronger.

NHLPA and player are happy because he gets paid, Kings are happy because they get to dodge the anchor of a cap hit

Richards doesn't have a documented injury. The NHL has a right under the CBA to independently verify with their own doctors (just in case the Kings wanted to invent an injury for Richards), the question from there is if they would choose to apply that or just how much you believe in the conspiracy.

[Provost]

Exactly, and if it's not applied consistently the NHLPA can easily argue the Kings were picking out Richards so they could get clear of his contract more so than him.

Richards doesn't have a documented injury. The NHL has a right under the CBA to independently verify with their own doctors (just in case the Kings wanted to invent an injury for Richards), the question from there is if they would choose to apply that or just how much you believe in the conspiracy.

I believe the argument would be that if the league decided that Richards had to be enrolled in the substance abuse program, then he would be suspended and considered on LTIR until he had completed mandatory rehab treatment.

That course would mean that LA would have to take on his contract again though.

I think the more likely course is that the league will let LA retroactively use a regular buyout and take the cap hit for that. If they don't and the contract termination is disallowed (which it almost certainly will be)... then Richards can show up to training camp and collect his full pay.

[Maniwaki Canuck]

I believe the argument would be that if the league decided that Richards had to be enrolled in the substance abuse program, then he would be suspended and considered on LTIR until he had completed mandatory rehab treatment.

That course would mean that LA would have to take on his contract again though.

I think the more likely course is that the league will let LA retroactively use a regular buyout and take the cap hit for that. If they don't and the contract termination is disallowed (which it almost certainly will be)... then Richards can show up to training camp and collect his full pay.

Provost, you keep talking as though the league is going to be ruling on this: if it's a grievance, doesn't it go to an arbitrator?

[Provost]

Provost, you keep talking as though the league is going to be ruling on this: if it's a grievance, doesn't it go to an arbitrator?

Yes, it will be an arbitrator who decides whether the contract termination is able to be upheld (I am assuming it won't be). The next steps are up to the league though. An arbitrator generally wouldn't decide on how the team is allowed to deal with the salary cap issues or be able to give the team any cap relief... that is up to the league to decide and in keeping with the CBA.

My assumption is that the league will allow something else to happen other than Richards having to show up to training camp and the Kings having to pay his full salary and cap hit.

It is possible that if the league allowed LA to do a regular buyout after the permitted window, it could be grieved as well. I am not sure it would be though as that would be a much weaker case to make for the NHLPA. I would bet they take their win and Richards becomes a free agent who can pursue opportunities with any other team rather than going back to the Kings locker room (or their minor league affiliate).

[Maniwaki Canuck]

^^ Makes sense, we'll see if it works out that way!

[Rush17]

And yet you know very little about the detail of what actually happened in either case. We can assume Richards was charged at this point, where we know Kane hasn't been (as yet). Voyonov is a better comparable, even if there isn't as clear cut a policy on abuse within the NHL as there is for drugs.

That this comes on the heels of the Stoll signing is another point that should be relevant as well. Just because he pled down to a lesser charge he's still fit to be signed to an NHL contract. Richards (not knowing what he was charged with) is similarly tagged to illegal activity with drugs and is deemed to be unfit for his current contract and gets terminated.

I agree the Richards termination is very suspect considering other contracts that haven't been terminated for worse, but let's hold off making sweeping comparisons just yet.

It is really strange for the contract to be terminated after Lombardi talked about it being the right thing not to buy Richards out earlier, and then to terminate his contract at seemingly the first opportunity and when they were starting to be in a more significant cap crunch. I do want to see how this plays out and what evidence is presented.

Maybe the answer would be to limit contract term/length to something more reasonable. Or to allow a buyout clause after x amount of years if a player is injured. IE: Player is hurt for 2 years and unable to return for 3rd season. Allow a buyout. Consider it an act of god like they do when a tree falls on your house.

I'm glad GM's are becoming more savvy and not handing out crazy contracts for crappy players. Teams will take chances though with long term deals if its an option. As a GM you only have so long to make stuff happen. Your natural response is give out deals that may not be good long term if they help now. You likely won't be around later to deal with it. Similar to the whole consumerism mass pollution thing. (Lets not make this political though.)

[elvis15]

Figured I'd bump this along with the news today that Richards is being charged now:

http://forum.canucks.com/topic/371796-tsn-richards-charged-with-illegal-possession-of-a-controlled-substance/

http://www.tsn.ca/richards-charged-with-illegal-possession-of-a-controlled-substance-1.351639

Personal use and a small amount? That alone isn't enough to terminate the contract. Is it arguable from there that his failure to disclose the incident is enough? That's a stretch for the nature of the offence.

[Lionized27]

Figured I'd bump this along with the news today that Richards is being charged now:

http://forum.canucks.com/topic/371796-tsn-richards-charged-with-illegal-possession-of-a-controlled-substance/

Personal use and a small amount? That alone isn't enough to terminate the contract. Is it arguable from there that his failure to disclose the incident is enough? That's a stretch for the nature of the offence.

If this is indeed the case I would be shocked if the contract termination stands.